Case Information

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF : PENNSYLVANIA

v.

DAVID BRACETTY

Appellant No. 2655 EDA 2015 : Appeal from the Judgment of Sentence August 21, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP- 51 -CR- 0012080 -2014 BEFORE: OTT, RANSOM, JJ., STEVENS, P.J.E.* FILED NOVEMBER 08, 2016

MEMORANDUM BY RANSOM, J.: David Bracetty appeals the August 21, 2015 judgement of sentence imposed following non -jury finding guilty robbery, theft by unlawful taking, receiving stolen property and simple assault. The imposed sentence of two and one -half five years' incarceration, followed two years' probation robbery to run concurrent with two five -year terms of probation imposed unlawful taking property. We affirm part vacate part.

We briefly summarize relevant facts procedural history as follows. On August 2014, around 6:00 p.m., Appellant's ex- girlfriend ( "the Victim ") was standing the corner with their three -year -old daughter Appellant approached the Victim and did not want the Victim's friend go into the apartment. See N.T. at 10. The Victim was on her cellphone at the time. See id. at 7 -8. Appellant "became belligerent and started grabbing at [the Victim's cellphone]." Id. at 8, 21. Appellant "hit the Victim in the face with the [electronic] tablet he was holding and continued to grab at her phone." Trial Ct. Op., 03/22/2016, at 2; N.T. at 7 -9, 20. The Victim hung up her call and proceeded to dial 911. See Trial Ct. Op., 03/22/2016, at 2; N.T. at 10, 21. As Victim was on phone with police, Appellant "eventually overpowered her and took her cellphone." Trial Ct. Op., 03/22/2016, at Thereafter, according to Victim, she lay the ground fetal position, and kicked her the stomach two or three times. See Op., 03/22/2016, at 3; N.T. at 11.

Around 7:34 p.m., the Victim provided an "informative" statement to Officer Silva, who prepared domestic violence report document incident. N.T. -28, 29 -32; Official Domestic Violence Rpt., 8/8/14. The report indicates that the Victim did not report any specific injuries she did not have any "visible injury" that time. at Victim's mother testified took two bricks broke her car house windows between 6:00 7:00 p.m. same

J-S74044-16 evening. See id. at 38 -39, 47.2 Around 9:00 p.m., Officer Semet received call about "a person with gun" in the mother's neighborhood. Id. at 54. When he arrived, the mother approached the Officer reported Appellant breaking the windows. Id. at 53. Officer Semet located Appellant two blocks away mother's house and placed under arrest. Id. at 55. When searched, did not have the Victim's cellphone. Id. at 55 -56. "The Victim never recovered her cellphone." Op., 3/22/2016, at 3.

Around 12:15 a.m., on August 9, 2014, Detective King interviewed the Victim, at which time he observed bite mark Victim's breast, as well scrapes bruises her feet arms, apparently suffered during the earlier incident with Appellant. See id. at 56 -60.3

According to Appellant, the Victim embellished her story. He testified he had moved out of Victim's apartment four days before the incident he approached the Victim because he wanted go to the store with his three -year -old daughter. at 78, -84. trial judge, however, found the Victim's story more credible. N.T. at 85. was According to mother, Appellant "was staying with [the Victim] in apartment but they were fighting all time." N.T. Despite Appellant's objection based on inconsistencies the mother's story, the trial judge allowed testimony. See id. 48. Contrary his normal practice, Detective King did not photograph the

Victim's injuries, nor did he record his observations his report. id. at

J-S74044-16 convicted of robbery, by unlawful taking, property, and simple assault. Sentencing occurred on August 21, 2015.

On August 28, 2015, Appellant pro se filed an appeal from the judgment sentence without consulting counsel. Unaware appeal, trial counsel filed motion reconsideration of sentence August 31, 2015.

On October 30, 2015, Appellant timely filed court -ordered Pa.R.A.P. 1925(b) statement, challenging the sufficiency weight of the evidence. On January 7, 2016, court denied Appellant's motion for reconsideration of sentence. Order, 1/7/2016 (citing Pa.R.Crim.P. 720(B)(3)(c) (denying post- sentence motion operation of law after one hundred twenty days)).4

In this Court, filed an application to quash the pending, pro se appeal remand preserve sentencing issues. See Appellant's Application for Remand, 1/12/2016. This Court denied the petition without prejudice as Appellant's right to raise additional issues in supplemental We accept his appeal as properly filed January 7, See v. Cooper, A.3d (Pa. 2011). ( "The merely premature pro se appeal did not divest the jurisdiction to act upon timely post- sentence motion later filed appellee's own counsel accordance with Criminal Rule 720(A). "). "Under the circumstances, where the proper, counseled appeal was quashed administratively, the subsequently- assigned Superior Court panel should have treated premature appeal if it had been filed after denial of the post- sentence motion accordance with Pa.R.A.P. 905(a)(5)."

J-S74044-16 Pa.R.A.P. 1925(b) statement. See Sup. Order, 2655 EDA 2015, 2/3/2016. Subsequently, Appellant filed an amended Pa.R.A.P. 1925(b) statement, further preserving a challenge discretionary aspects his sentence. trial court filed a responsive opinion on March 22, 2016.5

Appellant contends the should not have imposed separate sentences theft robbery charges because they arose out of the same incident because theft charges should have merged with robbery. Appellant's Brief -9. Specifically, raises following issue:

Did court err when it failed to merge the robbery and theft convictions for purposes of sentencing and thus the sentences imposed convictions are illegal must be vacated?

Appellant's brief

"A claim crimes should have merged sentencing purposes raises challenge legality of the sentence. Therefore, our standard of review de novo our scope of review is plenary." Commonwealth v. Cianci, 130 A.3d 780, 782 (Pa. Super. 2015) (quoting v. Quintua, A.3d 399, 400 (Pa. Super. 2012), appeal denied, A.3d 810 (Pa. 2013) (citation omitted)). "[W]here case requires correction a sentence, this [C]ourt has the option of either remanding resentencing, has abandoned the issues preserved his amended Pa.R.A.P. 1925(b) statement.

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or amending the sentence directly." Commonwealth v. Walls, 449 A.2d 690, 696 (Pa. Super. 1982).

We discern two errors Appellant's sentence. First, "the statutory definitions of the crimes of theft and receiving render it logically impossible that one person be both the thief and receiver same item[.]" Commonwealth v. Tesse/, 500 A.2d 144, 151 (Pa. Super. 1985) (citing v. Simmons, 36 A.2d 631 (Pa. Super. 1975)). A person may be charged with violating Sections 3921(a) 3925(a) based single criminal act, however, "a judgment of sentence can only be imposed one or other." Simmons, 336 A.2d at 631; see 18 Pa.C.S. §§ 3921(a), 3925(a).6

Here, trial court imposed concurrent, five -year terms of probation theft by unlawful taking property.7 Based on the facts of this case, it clear that took unlawful control Theft unlawful taking occurs when accused "takes, or exercises unlawful control over, movable property another with intent deprive thereof." 18 Pa.C.S. § 3921(a). Receiving stolen property occurs when person "intentionally receives, retains, or disposes of moveable property of Id. at § (defining another knowing that it has been stolen." "receiving" acquiring possession). In support of the unlawful taking charge, the court states "it is

absolutely clear from Victim's testimony that Appellant unlawfully took her cell phone without her permission." Op., 3/22/2016, In support of the receiving stolen property charge, the states "it is absolutely clear received retained Victim's cell phone without intent return it to her he had knowledge cell phone was stolen." -6.

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Victim's cellphone. However, the fact that stole the phone precludes the imposition of sentence for the crime of receiving stolen property. See Simmons, 336 A.2d at 631; Tessel, 500 A.2d Accordingly, the trial court erred we vacate the portion of Appellant's sentence imposed for property.

Second, Appellant's merger claim has merit. To determine whether convictions merge sentencing purposes, we apply the following test: "merger is appropriate only when two distinct criteria are satisfied: (1) the crimes arise from single criminal act; (2) all statutory elements one of the offenses are included within statutory elements of the other." Commonwealth v. Jenkins, 96 A.3d 1056 (Pa. Super. 2014) (citing Pa.C.S. § 9765); Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009); Commonwealth v. Payne, 868 A.2d 1257, (Pa. Super. 2005). If merger is appropriate under the elements based approach, the higher -graded offense subsumes the lower- graded offense sentencing purposes. Cianci, 130 A.3d 782; v. Coppedge, 984 A.2d 562, (Pa. Super. 2009) (citing 42 Pa.C.S.A. § 9765).

Here, addressed the sufficiency of evidence regarding the following manner: In review of the evidence, it absolutely clear from [the] Victim's testimony Appellant unlawfully took her cell phone without permission. He forcibly took phone her during physical altercation. Victim never had phone returned to her.

J-S74044-16 Ct. Op. 6. Regarding the robbery, the trial court noted:

In review of the evidence, it is absolutely clear that Appellant in course of committing a theft, inflicted bodily injury Victim physically removed her phone force. Victim testified during the altercation with ... Appellant, ... Appellant proceeded to hit the Victim with a tablet while he was grabbing for her phone.

Id. (discussing, thereafter, additional evidence supporting Appellant's separate conviction simple assault). Based upon court's description of the evidence sufficient convict Appellant of these two crimes, we conclude these crimes arise from a single criminal act, thus satisfying the first criterion of the merger test. Jenkins, A.3d at 1056.

In our view, the elements -based criterion merger test is also satisfied. To satisfy this criterion, we must "focus[] solely the elements of the offenses which criminal defendant has been convicted." at Here, was convicted of robbery, graded as felony of the second degree.

A person is guilty of robbery if, in course of committing a theft, he ... inflicts bodily injury upon another or threatens another with or intentionally puts fear of immediate bodily injury.

18 Pa.C.S. § 3701(a)(1)(iv) (emphasis added); see Cianci, 130 A.3d at 782 ( "relevant question merger analysis now whether person can commit one crime without also committing other crime vice -versa, regardless of whether crimes arose same set facts. "). was also convicted of unlawful taking, graded first -degree misdemeanor.

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A person guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive thereof.

Id. at § 3921(a). We conclude statutory elements of "theft by unlawful taking," as defined Section 3921(a), are necessary establish relevant statutory element of robbery, i.e., "in course of committing theft." Pa.C.S. § 3701(a)(1)(iv).

For these reasons, Appellant's conviction for theft by unlawful taking must merge for sentencing purposes into his conviction for robbery. Accordingly, we vacate portion of Appellant's sentence imposed for theft by unlawful taking.8

Judgment of sentence for robbery affirmed. Judgments of sentence property theft unlawful taking vacated. asserts that "committed at least six separate acts of criminal violence against [the Victim] when he stole her cell phone. Commonwealth's Brief at 7. According to the Commonwealth, these separate acts preclude merger Appellant's case. We disagree. Appellant's robbery charges arise single act thievery during which inflicted bodily injury upon the Victim. To extent Appellant committed additional acts violence, such acts are irrelevant to our merger analysis, made clear opinion. See Ct. Op. -6 (discussing the sufficiency of evidence robbery theft), 7 (discussing the sufficiency of the evidence for simple assault).

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Judgment Entered.

J: seph D. Seletyn,

Prothonotary

Date: 11/8/2016

- - friend. See Notes Testimony, 5/29/2015, -8 ( "N.T. ").

[1] Respectively, Pa.C.S. §§ 3701(a)(1)(iv), 3921(a), 3925(a), 2701(a). *Former Justice specially assigned the Superior Court.