Com. v. Kennedy, Y. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
YASIN SHARIF KENNEDY
Appellant No. 1365 MDA 2013
Appeal from the Judgment of Sentence December 13, 2011
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000304-2011
CP-35-CR-0000306-2011
CP-35-CR-0003242-2010
BEFORE: PANELLA, J., DONOHUE, J., and MUNDY, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 09, 2015
Yasin Sharif Kennedy (“Kennedy”) appeals from the judgment of
sentence entered on December 13, 2011, following his convictions of
numerous crimes, including, of relevance to this appeal, theft by deception,
conspiracy and criminal use of a communication facility.1 We affirm the
convictions, but vacate the judgment of sentence and remand for re-
sentencing.
Kennedy’s convictions are the result of efforts by the Pennsylvania
Attorney General’s Office and the Office of the District Attorney of
Lackawanna County. These agencies were operating separate narcotics
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1
18 Pa.C.S.A. §§ 3922(a)(1), 903, 7512(a).
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investigations in Scranton, Pennsylvania in 2010. Both of these agencies
used a confidential informant (“CI”) to engage in multiple drug transactions
with Kennedy between July and November 2010, when Kennedy was
arrested. The CIs consented to the interception of telephone calls with
Kennedy and his companion, Allateef White (“L.A.”), to arrange the purchase
of increasing quantities of heroin. The CIs also wore wires when meeting
with Kennedy.
The District Attorney’s investigation began in August 2010 and
involved three transactions. On August 10, 2010, the District Attorney’s CI
called Jessica Peoples (“Peoples”) to ask about buying ten bags of heroin.
Peoples handed the phone to L.A., and they agreed to a price of $130. N.T.,
9/13/11, at 30-32. When the CI went to Peoples’ house for the transaction,
both L.A. and Kennedy were present, but L.A. conducted the sale. N.T.,
9/14/11, at 136-37. Two days later, the CI arranged to buy fifty bags, or a
“brick,” of heroin from Kennedy and L.A. Id. at 139. The transaction again
occurred at Peoples’ house. Id. at 140. In this instance, the CI arrived at
Peoples’ house first, and L.A. and Kennedy later arrived at the residence
together. Again, L.A. conducted the transaction and Kennedy was present.
Id. at 141-42. On September 17, 2010, the CI spoke with Kennedy a
number of times on the phone to arrange to purchase another brick of
heroin for $300. Id. Kennedy told the CI to meet him in a particular location
at a certain time. Id. As the CI and an undercover police officer waited in
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the CI’s car, Kennedy approached and entered the car. Id. at 148. As they
drove around, Kennedy gave the heroin to the CI; however, Kennedy
produced only forty-four bags of heroin instead of the agreed-upon amount
of fifty bags. Id. at 148-49. Kennedy took the CI’s money and promised to
return with more heroin to make up the difference, but he never returned.
Id. at 149-50.
The Attorney General’s investigation also began in August 2010 but it
involved five transactions. On August 31, 2010, the Attorney General’s CI
made multiple calls to Kennedy to arrange to buy two bricks of heroin for
$700. Id. at 9-11. When Kennedy, who lived outside of the county, arrived
in Scranton, he called the CI and arranged to meet him at a particular
convenience store. As the CI waited for Kennedy, Kennedy called and told
the CI to drive to a different location. Kennedy exited a vehicle being driven
by an unidentified woman, entered the CI’s car, and conducted the drug
transaction.2 Id. at 12-14. On September 10, 2010, after another series of
phone calls, the CI arranged to buy three bricks of heroin from Kennedy for
$1050. Id. at 30-31. On that date, Kennedy and L.A. picked up the CI and
conducted the sale in their vehicle. In this instance, L.A. conducted the
transaction with the CI while Kennedy drove the vehicle. Id. at 31-35.
During this transaction, Kennedy proposed that if the CI would buy five
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2
At trial, the Commonwealth played a recording of this, and other
conversations, between this CI and Kennedy to the jury.
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bricks, he would “front” him an additional five bricks, which the CI could
then sell and pay for later. N.T., 9/13/11, at 198. The CI discussed this
possibility with Kennedy in several phone calls, and on September 27, 2010,
the parties agreed to meet for this “five and five” deal. Id. at 201. On this
date, Kennedy and L.A. arrived together. They instructed the CI to walk
down the street. Id. When the CI was in a secluded area, Kennedy
approached him on foot and gave him a quantity of loose heroin in a
cigarette pack.3 Id. Pursuant to their consignment agreement, the CI paid
$1750 for this heroin, which was supposed to weigh roughly ten grams. Id.
The quantity of heroin was not the promised amount, so the CI and Kennedy
eventually agreed that Kennedy would provide the amount that was missing
from this transaction and try another “five and five” deal. Id. at 202-05.
The parties met again on October 14, 2010. Leading up to that
meeting, the CI spoke with Kennedy a number of times over the phone to
arrange the deal. Id. at 206. Again, the parties met in an alley on foot.
Id. at 206-07. The CI gave Kennedy $1750 and Kennedy gave the CI a bag
of a loose heroin. Id. at 207. While the quantity provided was larger than
the last time, it was not the entire amount the parties agreed upon, and
additionally, the substance was not heroin, but a counterfeit substance. Id.
at 208; N.T., 9/14/11, at 49. When later confronted over the phone,
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3
In all prior transactions, the heroin in each brick was divided into fifty
bags. N.T., 9/13/11, at 201.
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Kennedy told the CI that he gave him an imposter substance because he
thought that the CI was working with the police. N.T., 9/13/11, at 208. The
CI and Kennedy agreed to meet on November 3, 2010, so that the CI could
buy another five bricks of heroin for $1750 and Kennedy could give the CI
everything that was owed to him from the previous transactions. Id. at
210. In preparation for that meeting, the CI made a number of phone calls
to Kennedy and L.A. Id. at 209-10. On that date, Kennedy entered the CI’s
vehicle, took the CI’s money and left. Id. at 210. Shortly thereafter, the
police stopped Kennedy and L.A. as they entered the Pennsylvania Turnpike.
N.T., 9/13/11, at 56. As the officers approached the vehicle, they observed
L.A. in the driver’s seat and Kennedy in the passenger’s seat. All of the pre-
recorded currency given to Kennedy that day, less fifty dollars, was
recovered from Kennedy’s right shoe.4 Id. at 57-60. After being placed
under arrest, Kennedy admitted to one of the arresting officers that the
reason he was in Scranton was to “rip off” the CI because he suspected the
CI was working with the police. N.T., 9/14/11, at 166.
Kennedy was subsequently charged with numerous crimes, including
not only the crimes listed in the first paragraph of this decision, but also
multiple violations of the Controlled Substance, Drug, Device and Cosmetic
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4
Another pre-recorded twenty dollar bill used that day was later found in the
interior of the vehicle. N.T., 9/14/11, at 167.
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Act. The charges were filed in three separate criminal informations. 5 As a
result of a motion filed by the Commonwealth, all charges were joined for
trial.
At the conclusion of a two-day jury trial, Kennedy was found guilty of
theft by deception, theft by unlawful taking, fleeing or attempting to elude
police officers, possession of drug paraphernalia, and multiple counts of
criminal use of a communication facility, conspiracy, possession of a
controlled substance, possession of a controlled substance with the intent to
deliver, and delivery of a controlled substance. On December 13, 2011, the
trial court sentenced him to an aggregate term of 186 to 372 months of
imprisonment, to be followed by fifteen years of special probation. Kennedy
did not file post-sentence motions.
On January 5, 2012, Kennedy filed a timely notice of appeal. The trial
court ordered Kennedy to file a statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and he complied. The trial court did not file
an opinion in response thereto, and on May 20, 2014, this Court entered a
judgment order directing the trial court to file an opinion addressing the
issues Kennedy raised in his Pa.R.A.P. 1925(b). On October 24, 2014, the
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5
The charges arising from the events of November 3, 2010 were filed at 10
CR 3242. Charges relating to the other transactions that occurred as part of
the Attorney General’s investigation were filed at 11 CR 304, and charges
related to the District Attorney’s investigation were filed at 11 CR 306.
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trial court complied with our order. Accordingly, we now proceed review the
issues presented by Kennedy.
Kennedy has raised the following three issues on appeal:
1. Whether the Commonwealth presented insufficient evidence
to establish the grading of [t]heft by [d]eception, [c]riminal
[c]onspiracy – [t]heft by [d]eception, and [c]riminal [u]se of
a [c]ommunication [f]acility as felonies of the third degree
when the Commonwealth failed to prove sufficient valuation
to substantiate a felony grading?
2. Whether there was insufficient evidence to support a charge
of [c]riminal [u]se of a [c]ommunication [f]acility, as this
offense requires intent to commit a crime graded as a felony
when the underlying offense does not meet the statutory
requirement?
3. Whether the trial court abused its discretion by allowing
docket number 2010 CR 3242, docket number 2011 CR 304,
and docket number 2011 CR 306 to be joined for trial?
Appellant’s Brief at 4.
Kennedy’s first issue challenges the sufficiency of the evidence
supporting his convictions of theft by deception and conspiracy to commit
theft by deception.6 “In reviewing a sufficiency of the evidence claim, we
must determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light most
favorable to the verdict winner, are sufficient to support all elements of the
offense.” Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013)
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6
These charges were filed specifically with regard to Kennedy’s theft of
$1750 from the CI on November 3, 2010. See Information, Criminal Action
No. 2010 CR 3242, 1/11/11.
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(quoting Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011)).
When performing this review, “we may not reweigh the evidence or
substitute our own judgment for that of the fact finder.” Id.Kennedy argues that in order to be convicted of felony theft by
deception, the Commonwealth was required to establish that the amount
involved in the theft was at least $2000. It is Kennedy’s position that the
Commonwealth failed to do so, and therefore, he asks that his conviction for
theft by deception and conspiracy to commit theft by deception be vacated.
Appellant’s Brief at 8-9.
In its Rule 1925(a) opinion, the trial court agrees with Kennedy that
the Commonwealth failed to present sufficient evidence to establish that the
value involved in the theft was at least $2000; however, the trial court
concludes that the convictions are sound, as the value of the goods
implicated only the grading of the offense for sentencing purposes. It asks
that we affirm the convictions and remand solely for resentencing on the
theft by deception and conspiracy of theft by deception convictions. Trial
Court Opinion, 10/24/14, at 15-16.
Kennedy was charged with, and convicted of, theft by deception under
18 Pa.C.S.A. § 3922(a)(1). This statute provides that,
[a] person is guilty of theft if he intentionally obtains or
withholds property of another by deception. A person deceives if
he intentionally:
(1) creates or reinforces a false impression, including false
impressions as to law, value, intention or other state of mind;
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but deception as to a person's intention to perform a promise
shall not be inferred from the fact alone that he did not
subsequently perform the promise[.]
18 Pa.C.S.A. § 3922(a)(1). Thus, contrary to Kennedy’s apparent position,
there is no threshold value requirement that must be met for a conviction of
theft by deception. Furthermore, our review of the evidence of record, in
the light most favorable to the Commonwealth, reveals sufficient evidence to
establish that Kennedy committed this offense. See, e.g., N.T., 9/3/11, at
210; N.T., 9/14/11, at 166.
However, Section 3903 of the Crimes Code governs the grading of
theft offenses. It provides, in relevant part, as follows:
(a) Felony of the second degree.--Theft constitutes a felony
of the second degree if:
(1) The offense is committed during a manmade disaster, a
natural disaster or a war-caused disaster and constitutes a
violation of section 3921 (relating to theft by unlawful taking or
disposition), 3925 (relating to receiving stolen property), 3928
(relating to unauthorized use of automobiles and other vehicles)
or 3929 (relating to retail theft).
(2) The property stolen is a firearm.
(3) In the case of theft by receiving stolen property, the property
received, retained or disposed of is a firearm.
(4) The property stolen is any amount of anhydrous ammonia.
(5) The amount involved is $100,000 or more but less than
$500,000.
(a.1) Felony of the third degree.--Except as provided in
subsection (a) or (a.2), theft constitutes a felony of the third
degree if the amount involved exceeds $2,000, or if the property
stolen is an automobile, airplane, motorcycle, motorboat or
other motor-propelled vehicle, or in the case of theft by
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receiving stolen property, if the receiver is in the business of
buying or selling stolen property.
(a.2) Felony of the first degree.-- Except as provided in
subsections (a) and (a.1), theft constitutes a felony of the first
degree if:
(1) in the case of theft by receiving stolen property, the property
received, retained or disposed of is a firearm and the receiver is
in the business of buying or selling stolen property; or
(2) the amount involved is $500,000 or more.
(b) Other grades.--Theft not within subsection (a), (a.1) or
(a.2), constitutes a misdemeanor of the first degree, except that
if the property was not taken from the person or by threat, or in
breach of fiduciary obligation, and:
(1) the amount involved was $50 or more but less than $200 the
offense constitutes a misdemeanor of the second degree; or
(2) the amount involved was less than $50 the offense
constitutes a misdemeanor of the third degree.
18 Pa.C.S.A. § 3903(a),(b). Thus, we agree with the trial court that the
value of the item or items stolen during a theft is relevant only insofar as the
grading of the crime for sentencing purposes. As discussed above, the
Commonwealth established that Kennedy stole cash in the amount of only
$1750, and therefore that his theft by deception conviction and related
conspiracy conviction could only be graded as first-degree misdemeanors.7
18 Pa.C.S.A. § 3903(b). Accordingly, the trial court erred as matter of law
by grading these offenses as felonies for sentencing purposes.
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7
Conspiracy is graded the same as the most serious offense that is an
object of the conspiracy. 18 Pa.C.S.A. § 905(a).
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In his second issue, Kennedy attacks his conviction of criminal use of a
communication facility at 10 CR 3242, which we again note involved only the
events of November 3, 2010. He argues that there was insufficient evidence
to support his conviction because to be found guilty of this crime, the
Commonwealth had to prove that he committed or attempted to commit a
felony. It is Kennedy’s position that because the theft by deception and
related conspiracy charge were not felonies, this conviction cannot stand.
Appellant’s Brief at 9-10. We disagree.
Criminal use of a communication facility is defined as follows:
(a) Offense defined.--A person commits a felony of the third
degree if that person uses a communication facility to commit,
cause or facilitate the commission or the attempt thereof of any
crime which constitutes a felony under this title or under the act
of April 14, 1972 (P.L. 233, No. 64),1 known as The Controlled
Substance, Drug, Device and Cosmetic Act. Every instance
where the communication facility is utilized constitutes a
separate offense under this section.
18 Pa.C.S.A. § 7512(a).
To establish evidence sufficient to convict a person of criminal use of
communication facility, “the Commonwealth must prove beyond a
reasonable doubt that: (1) [the accused] knowingly and intentionally used a
communication facility; (2) [the accused] knowingly, intentionally or
recklessly facilitated an underlying felony; and (3) the underlying felony
occurred.” Commonwealth v. Moss, 852 A.2d 374, 382 (Pa. Super.
2004); see also Commonwealth v. Rose, 960 A.2d 149 (Pa. Super. 2008)
(“Under the plain language of the statute, one essential element of the crime
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is that the person must use the communication facility to bring about a
felony.”) (emphasis in the original).
The evidence, when viewed in the light most favorable to the
Commonwealth, establishes that Kennedy used a telephone to arrange to
meet the CI on November 3, 2010 with the promise to sell the CI a certain
amount of heroin. N.T., 9/13/11, at 208-10. On that day, Kennedy met
with the CI, took the CI’s money, and left. N.T., 9/13/11, at 210; N.T.,
9/14/11, at 52. After waiting for a period of time, the CI came to believe
that Kennedy was not returning and informed the agent with whom he was
working of this belief. N.T., 9/13/11, at 210; N.T., 9/14/11, at 52. Shortly
thereafter, the police stopped Kennedy’s vehicle as it entered the
Pennsylvania Turnpike. N.T., 9/14/11, at 56. Following his arrest, Kennedy
stated that he was trying to “rip off” the CI because he believed the CI was
working with the authorities. Id. at 166.
We agree with the trial court that Kennedy “took a substantial step
towards completing the drug transaction.” Trial Court Opinion, 10/24/14, at
19. Kennedy spoke with the CI over the phone to set up a heroin buy.
Kennedy later entered the CI’s vehicle, took the money, and left—
presumably to procure the heroin. When the police subsequently stopped
Kennedy he stated that he met with the CI to “rip” him “off.” N.T., 9/14/11,
at 166. That is merely nothing more than Kennedy’s claim. The jury did not
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believe him. The evidence, which the jury obviously credited, shows that
Kennedy took a substantial step towards completing the drug transaction. 8
In his final issue, Kennedy argues that the trial court erred by granting
the Commonwealth’s motion to join all charges for trial. “Whether to join or
sever offenses for trial is within the trial court's discretion and will not be
reversed on appeal absent a manifest abuse thereof, or prejudice and clear
injustice to the defendant.” Commonwealth v. Wholaver, 989 A.2d 883,
898 (Pa. 2010).
Pennsylvania Rule of Criminal Procedure 582 governs the joinder of
indictments or informations for trial. In pertinent part, it provides:
(A) Standards
(1) Offenses charged in separate indictments or informations
may be tried together if:
(a) the evidence of each of the offenses would be admissible in a
separate trial for the other and is capable of separation by the
jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or
transaction.
(2) Defendants charged in separate indictments or informations
may be tried together if they are alleged to have participated in
the same act or transaction or in the same series of acts or
transactions constituting an offense or offenses.
Pa.R.Crim.P. 582(A).
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8
Kennedy was also charged with, and convicted of, criminal use of a
communication facility in connection with the Attorney General’s
investigation. See Amended Information, Criminal Action No. 11 CR 0304,
9/7/11. Kennedy does not challenge this conviction on appeal.
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When considering whether to allow crimes charged in separate
informations to be tried together, “[t]he court must determine [1] whether
the evidence of each of the offenses would be admissible in a separate trial
for the other; [2] whether such evidence is capable of separation by the jury
so as to avoid danger of confusion; and, if the answers to these inquiries are
in the affirmative, [3] whether the defendant will be unduly prejudiced by
the consolidation of offenses.” Commonwealth v. Kunkle, 79 A.3d 1173,
1190 (Pa. Super. 2013) (quoting Commonwealth v. Lark, 543 A.2d 491,
497 (Pa. 1988)).
In this case, the trial court found the first prong satisfied upon its
determination that evidence of each offense would be admissible in separate
trials because they “were so intertwined into a common scheme or plan that
proof of one tended to prove the other.” Trial Court Opinion, 10/24/14, at
26. Generally, evidence of bad acts is inadmissible to prove that a
defendant acted in conformity with those acts or to demonstrate a
propensity to commit crimes. Commonwealth v. Brown, 52 A.3d 320,
325 (Pa. Super. 2012). “However, evidence of bad acts is admissible
pursuant to our rules of evidence to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, and absence of mistake or accident.”
Id. (citing Pa.R.E. 404(b)(2)).9 “Therefore, evidence of other crimes or acts
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9
This rule provides, in relevant part, as follows:
(Footnote Continued Next Page)
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may be admitted if such evidence proves a common scheme, plan or design
embracing commission of two or more crimes so related to each other that
proof of one tends to prove the others.” Commonwealth v. Einhorn, 911
A.2d 960, 967 (Pa. Super. 2006). “The degree of similarity is an important
factor in determining the admissibility of other crimes or bad acts under this
exception.” Id.The evidence of the individual transactions as recounted above
establishes a common pattern or scheme used by Kennedy to purportedly
sell heroin. For each transaction, Kennedy would speak with the CI over the
phone to discuss the quantity of heroin the CI wanted, the price the CI
would pay, and the location for the transaction. Kennedy would travel to
Scranton in the company of another person. Moments before the
transaction, Kennedy would change the previously agreed-upon location.
_______________________
(Footnote Continued)
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person's character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
Pa.R.E. 404(b)(1)-(2).
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Once a relationship was established, Kennedy would fail to deliver the
agreed-upon amount of heroin, take the CI’s money while promising to get
more, and never return. Because the CIs had highly similar experiences
with Kennedy, we find no error in the trial court’s determination that
evidence as to one undercover operation would have been admissible in a
separate trial for the other, as it established a common scheme or plan on
Kennedy’s part, i.e., the manner in which he conducted his drug trade. See
Commonwealth v. Boyle, 733 A.2d 633, 636-37 (Pa. Super. 1999)
(finding that testimony regarding the manner in which defendant arranged
prices, quantities, and locations for sales of narcotics on multiple occasions
admissible to establish defendant’s common scheme for selling narcotics).
The second prong of the Kunkle test requires us to consider whether
the evidence was capable of separation such that the jury would not be
confused. The trial court concluded that,
the jury was able to separate the evidence pertaining to each
drug transaction because the [CIs] were different, no
eyewitnesses overlapped, and different investigating officers
testified. The testimony of each investigating officer involved a
limited number of actors and essentially the same conduct,
which provided a pattern of facts not complex to the jury. Each
drug transaction took place on a specific date, involved a
different [CI], and distinct amounts of physical evidence.
Trial Court Opinion, 10/24/14, at 28. The trial court’s description is
accurate: the evidence establishes that the offenses took place in different
locations, on different dates, and with different people. Accordingly, we
agree with the trial court that the jury was capable of separating the
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evidence. See Commonwealth v. Collins, 703 A.2d 418, 423 (Pa. 1997)
(holding that “[w]here a trial concerns distinct criminal offenses that are
distinguishable in time, space and the characters involved, a jury is capable
of separating the evidence”).
Having found no abuse of discretion in the trial court’s determination
as to the first two prongs of this test, we consider whether it abused its
discretion in concluding that Kennedy would not be unduly prejudiced by the
joinder of the informations for trial. See Kunkle, 79 A.3d at 1190. In the
context of joinder of indictments or informations for trial, our focus is on the
possibility of three distinct types of prejudice:
(1) the defendant may be embarrassed or confounded in
presenting defenses, as where his defense to one charge is
inconsistent with his defenses to others; (2) the jury may use
evidence of the additional crimes to infer criminal disposition,
and find guilt on the basis of this inference; or (3) the jury may
cumulate evidence of the various crimes to find guilt, when it
would not so find had it considered the evidence of each offense
separately. Accordingly, the interest of judicial economy served
by consolidating informations must be weighed against these
possibilities of prejudice in determining the propriety of
consolidation.
Commonwealth v. Boyd, 461 A.2d 1294, 1299 (Pa. Super. 1983).
Kennedy argues that he was prejudiced because “[i]n consolidating
these matters, the Commonwealth was allowed to infer and impute to the
jury that [Kennedy] had a propensity [to] commit crime, which made a fair
trial impossible.” Appellant’s Brief at 14. We disagree. This case is
analogous to Boyle, in which the defendant sold narcotics to undercover
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agents on five separate occasions over a period of approximately one month.
The charges arising out of those transactions were filed in two criminal
informations, which were joined for trial by motion of the Commonwealth.
On appeal, the defendant also argued that allowing the charges to be tried
together prejudiced him by unfairly demonstrating a propensity to commit
crimes. This Court rejected that argument, noting that any prejudice caused
by evidence of the defendant’s participation in serial drug transactions was
caused by the defendant himself. We concluded that because the defendant
created the sequence of events, he “cannot fairly now demand that the …
matters be severed and tried in separate trials.” Boyle, 733 A.2d at 638(Pa. Super. 1999) (quoting Commonwealth v. Lark, 543 A.2d 491, 499
(Pa. 1988)). Kennedy is not entitled to relief on this claim.
In summary, we affirm the convictions, but find that the trial court
erred by grading Kennedy’s theft by deception and related conspiracy
convictions as felonies. This finding has upset the sentencing scheme,
requiring us to vacate the judgment of sentence in its entirety and remand
for re-sentencing. See Commonwealth v. Phillips, 946 A.2d 103, 115
(Pa. Super. 2008) (“Where we determine that a sentence must be corrected,
this Court has the option of amending the sentence directly or remanding it
to the trial court for re-sentencing. If a correction by this Court may upset
the sentencing scheme envisioned by the trial court, the better practice is to
remand.”).
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Convictions affirmed. Judgment of sentence vacated. Case remanded
for resentencing. Jurisdiction relinquished.
Judge Mundy joins the memorandum.
Judge Donohue files a concurring and dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/2015
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