Com. v. Bannasch, P. ( 2018 )

J-S47040-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PAUL JEROME BANNASCH, :
:
Appellant : No. 229 WDA 2018
Appeal from the Judgment of Sentence January 30, 2018
in the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001337-2013
BEFORE: OLSON, MCLAUGHLIN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 26, 2018
Paul Jerome Bannasch (Appellant) appeals from the January 30, 2018
judgment of sentence following Appellant’s no contest plea to, inter alia,
third-degree murder. We affirm.
The trial court provided the following background.
[Appellant] and his co-conspirator were charged with
first[-]degree murder, kidnapping to facilitate a felony, unlawful
restraint resulting in serious bodily injury, [] conspiracy to
commit criminal homicide, [] conspiracy to commit unlawful
restraint of the victim, and following the unlawful killing, abuse
of a corpse. The charges arose out of an incident that took place
on June 22, 2013, in the City of Connellsville, Fayette County,
Pennsylvania[,] when [Appellant] and his co-conspirator left a
bar with the female victim, and then began to assault her. After
the victim was twice punched in the face, she fell and lost
consciousness. [Appellant] and his co-conspirator then forcefully
dragged her diagonally over some railroad tracks to an
embankment where they kicked her over the hillside. After
[Appellant] and his co-conspirator climbed down the hillside,
they unlawfully restrained the victim in an isolated, desolate
location while they continued to beat her with the intention of
* Retired Senior Judge assigned to the Superior Court.
J-S47040-18
killing her by means of strangulation and blows to her body
causing asphyxiation, as well as subjecting her to extreme blunt
force trauma to her face and penetration lacerations to other
parts of her body, including tearing of her vagina and anus.
After the victim died, [Appellant] and his co-conspirator threw
the totally naked dead body into the Youghiogheny River. The
prosecution gave notice that it intended to seek the death
penalty in light of the circumstances.
Following a forensic evaluation and numerous continuances
of the trial date by [Appellant], he was offered a plea bargain
whereby the prosecution would remove its request for the death
penalty and reduce the charge of murder from first degree to
third degree, but the plea itself would be general so the sentence
imposed would be up to the [trial] court. [On January 30, 2018,
Appellant] voluntarily and knowingly agreed to the bargain,
entering his no contest plea to third[-]degree murder[, unlawful
restraint, abuse of a corpse, two counts of conspiracy to commit
homicide, kidnapping to facilitate a felony, conspiracy to
unlawful restraint, and conspiracy to abuse of a corpse]. …
Trial Court Opinion, 3/27/2018, at 1-2 (unnecessary capitalization and
citations omitted).
On the same day, the trial court sentenced Appellant to a term of 20
to 40 years of incarceration for third-degree murder, two and one-half to
five years of incarceration for unlawful restraint, one to two years of
incarceration for abuse of a corpse, six to twenty years of incarceration for
kidnapping, and no further penalty on the remaining counts. All terms of
incarceration were set to run consecutively, for an aggregate term of
incarceration of 29 1/2 to 67 years.
-2-
J-S47040-18
Appellant timely filed a post-sentence motion on February 7, 2018,
which the trial court denied on February 9, 2018. This timely-filed appeal
followed.1 On appeal, Appellant raises two issues for our review.
I. Did the [trial] court err in sentencing Appellant on the
crime of [unlawful restraint2] to a consecutive period of
incarceration to the crime of kidnapping, as the two (2)
crimes merged for sentencing purposes[.]
II. Did the [trial] court abuse its discretion by imposing a
harsh, severe, and manifestly unreasonable and excessive
sentence by sentencing Appellant to the maximum
sentence allowable by law for each offense and by running
each offense in a consecutive order[.]
Appellant’s Brief at 7 (unnecessary capitalization omitted).
We begin with Appellant’s merger claim. A claim that two crimes
should have merged for sentencing purposes implicates the legality of the
sentence. Commonwealth v. Brown, 159 A.3d 531, 532 (Pa. Super.
2017). Our standard of review for a challenge to the legality of a sentence is
de novo, and our scope of review is plenary. Id.
Pennsylvania’s merger doctrine is codified in section 9765:
1 Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
2 Appellant’s statement of questions involved states that simple assault
merges with kidnapping for sentencing purposes, whereas his concise
statement of errors complained of on appeal and the argument section of his
brief state that unlawful restraint merges with kidnapping for sentencing
purposes. Compare Appellant’s Brief at 7 with Concise Statement of Errors
Complained of on Appeal, 3/7/2018; Appellant’s Brief at 10-12. Appellant
was not charged with, nor did he plead no contest to, simple assault. Thus,
it appears that his statement of questions involved contains a typographical
error. Accordingly, we review Appellant’s first claim as it pertains to the
merger of unlawful restraint and kidnapping.
-3-
J-S47040-18
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 offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.
42 Pa.C.S. § 9765. “The statute’s mandate is clear. It prohibits merger
unless two distinct facts are present: 1) the crimes arise from a single
criminal act; and 2) all of the statutory elements of one of the offenses are
included in the statutory elements of the other.” Commonwealth v.
Baldwin, 985 A.2d 830, 833 (Pa. 2009).
When considering whether there is a single criminal act or
multiple criminal acts, the question is not “whether there was a
‘break in the chain’ of criminal activity.” The issue is whether
“the actor commits multiple criminal acts beyond that which is
necessary to establish the bare elements of the additional crime,
then the actor will be guilty of multiple crimes which do not
merge for sentencing purposes.”
Commonwealth v. Martinez, 153 A.3d 1025, 1030 (Pa. Super. 2016),
quoting Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa. Super.
2012). “In determining whether two or more convictions arose from a single
criminal act for purposes of sentencing, we must examine the charging
documents filed by the Commonwealth.” Id. at 1031 (citing
Commonwealth v. Jenkins, 96 A.3d 1055, 1060 (Pa. Super. 2014)).
On appeal, Appellant argues that the crimes of unlawful restraint and
kidnapping arose from a single criminal act, and that the elements of
unlawful restraint are all included in the statutory elements of kidnapping.
Appellant’s Brief at 11.
-4-
J-S47040-18
Relevant to this claim, Appellant was charged with, and pled no
contest to, unlawful restraint and kidnapping.3 With respect to unlawful
restraint, Appellant was charged by criminal information as follows.
Knowingly restrained another person unlawfully in circumstances
exposing the person to risk of serious bodily injury, to wit: the
defendant did unlawfully re[s]train the victim… thus causing her
injury and subsequent death.
Information, 9/19/2013, at Count 4: Unlawful Restraint/Serious Bodily
Injury, 18 Pa.C.S. § 2902(a)(1).
With respect to kidnaping, Appellant was charged as follows.
Unlawfully removed another person a substantial distance under
the circumstances from the place where the person was found,
or unlawfully confined another person for a substantial period of
time in a place of isolation, with intent to facilitate the
commission of a felony or flight thereafter; to wit: the defendant
did drag the victim… a substantial distance in an attempt to
commit a felony against the victim.
Information, 9/19/2013, at Count 7: Kidnap to Facilitate a Felony, 18
Pa.C.S. § 2901(a)(2).
In its 1925(a) opinion, the trial court found that Appellant’s crimes did
not merge because they did not arise from a single criminal act.
3 These crimes are defined in the Crimes Code as follows. “[A] person
commits a misdemeanor of the first degree if he knowingly… restrains
another unlawfully in circumstances exposing him [or her] to risk of serious
bodily injury[.]” 18 Pa.C.S. § 2902(a)(1). “[A] person is guilty
of kidnapping if he unlawfully removes another a substantial distance under
the circumstances from the place where he [or she] is found, or if he
unlawfully confines another for a substantial period in a place of isolation,
[with the intent to] facilitate commission of any felony or flight thereafter.”
18 Pa.C.S. § 2901(a)(2).
-5-
J-S47040-18
In this case, [Appellant] conspired with his co-defendant to inflict
serious bodily injury upon the victim as occurred when the co-
defendant punched the victim in the head several times, and
then actively taking part in the completion of the crime of
unlawful restraint by each holding one of her arms and picking
her up from the weeds into which she had fallen thereby
substantially interfering with her liberty by preventing her
possible escape. When [Appellant] and his co-conspirator
dragged the victim across the railroad tracks to an isolated
riverbank with the intention of further assaulting her they
committed the crime of kidnapping. The crimes of kidnapping
and unlawful restraint to which [Appellant] entered no contest
pleas do not merge for sentencing purposes under the factual
circumstances as they existed in this case.
Trial Court Opinion, 3/27/2018, at 4-5 (citations omitted).
Upon review of the record, we agree with the trial court that Appellant
committed the crime of kidnapping to facilitate a felony, when, after the
victim was twice punched in the face and knocked unconscious, Appellant
“and his co-conspirator [] forcefully dragged her diagonally over some
railroad tracks to an embankment where they kicked her over the hillside” in
order to facilitate their continued assault and eventual murder of the victim.
Id. at 1-2. Appellant then, after climbing down the hillside where the victim
fell, committed the crime of unlawful restraint when he and his co-
conspirator
restrained the victim in an isolated, desolate location while they
continued to beat her with the intention of killing her by means
of strangulation and blows to her body causing asphyxiation, as
well as subjecting her to extreme blunt force trauma to her face
and penetration lacerations to other parts of her body, including
tearing of her vagina and anus.
Id. at 2.
-6-
J-S47040-18
Thus, we conclude that Appellant “commit[ed] multiple criminal acts
beyond that which is necessary to establish the bare elements of the
additional crime[,]” and, thus, he has not satisfied the first requirement for
merger. Martinez, 153 A.3d at 1030, quoting Pettersen, 49 A.3d at 912.
Moreover, even if we were to assume that these acts constituted a
single criminal act, Appellant would not be able to satisfy the second
requirement. As charged, unlawful restraint requires proof that Appellant
“restrain[ed] another unlawfully[,]” and did so in “circumstances exposing
[the victim] to risk of serious bodily injury[.]” 18 Pa.C.S. § 2902(a). On the
other hand, the charge of kidnapping requires proof that Appellant
unlawfully removed the victim “a substantial distance” from the place where
the victim was found, or unlawfully confined the victim “for a substantial
period in a place of isolation[,]” with the intent “to facilitate [the]
commission of any felony.” 18 Pa.C.S. § 2901(a)(2). All of the elements of
unlawful restraint are not included in the elements of kidnapping as
Appellant was charged: kidnapping does not require proof of circumstances
exposing the victim to the risk of serious bodily injury, and unlawful restraint
does not require proof of an intent to facilitate a felony. Accordingly, we find
that the crimes of unlawful restraint and kidnapping, as charged under these
factual circumstances, do not merge for sentencing. Thus, Appellant’s
legality-of-the-sentence claim fails.
-7-
J-S47040-18
Appellant next challenges the discretionary aspects of his sentence.
We consider this claim mindful of the following.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
Appellant has satisfied the first three requirements: he timely filed a
notice of appeal; he sought reconsideration in a post-sentence motion; and
his brief includes a Pa.R.A.P. 2119(f) statement. Therefore, we now
consider whether Appellant has raised a substantial question for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “A substantial question exists only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the
-8-
J-S47040-18
sentencing process.” Griffin, 65 A.3d at 935 (citation and quotation marks
omitted).
Appellant contends in his Pa.R.A.P. 2119(f) statement that “the
maximum and consecutive sentence was harsh, severe, and manifestly
unreasonable… considering the charges upon which [] Appellant was
convicted… [and because the trial court] failed to articulate a reasonable
basis for sentencing Appellant in the aggravated range or the maximum
sentence allowable … for each sentence.” Appellant’s Brief at 12-13. Thus,
Appellant challenges the consecutive nature of the maximum-imposed
sentences and the trial court’s failure to articulate its reasoning for imposing
aggravated range sentences.
Generally, Pennsylvania law affords the sentencing court
discretion to impose its sentence concurrently or consecutively
to other sentences being imposed at the same time or to
sentences already imposed. Any challenge to the exercise of this
discretion ordinarily does not raise a substantial question. Thus,
in our view, the key to resolving the preliminary substantial
question inquiry is whether the decision to sentence
consecutively raises the aggregate sentence to, what appears
upon its face to be, an excessive level in light of the criminal
conduct at issue in the case.
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (citations
and quotation marks omitted).
Here, Appellant pleaded no contest to, inter alia, third-degree murder,
abuse of a corpse, and kidnapping, and was sentenced to an aggregate term
of incarceration of 29 1/2 to 67 years for the abhorrent conduct detailed
above. We do not find that Appellant’s aggregate sentence was excessive
-9-
J-S47040-18
given the criminal conduct at issue in this case, and thus he has failed to
raise a substantial question warranting review of the discretionary aspect of
his consecutive sentences. See Commonwealth v. Gonzalez-Dejusus,
994 A.2d 595, 599 (Pa. Super. 2010).
Appellant does, however, raise a substantial question insofar as he
claims that the trial court failed to articulate its reasoning for imposing
aggravated range sentences. See Commonwealth v. Wellor, 731 A.2d
152, 155 (Pa. Super. 1999) (“In his final issue [a]ppellant claims the lower
court failed to state on the record adequate reasons for imposing sentences
in the aggravated range. This Court has held that such a challenge to the
sentence raises a substantial question.”). However, Appellant completely
abandons this claim in the argument section of his brief. Thus, it is waived.
See Commonwealth v. Johnson, 985 A.2d 915, 925 (Pa. 2009) (holding
that when an appellate brief fails to provide any discussion of a claim or
“fails to develop the issue in any other meaningful fashion capable of review,
that claim is waived”).
Instead of developing the claims raised in his Pa.R.A.P. 2119(f)
statement, Appellant alleges in the argument section of his brief that the
trial court “fashioned a sentence that is a virtual life sentence,” which would
have been appropriate if he had been convicted of first-degree murder as
charged, and also “failed to consider the protection of the public, gravity of
the offense as it relates to the victim and the community, and the
- 10 -
J-S47040-18
rehabilitative needs of [] Appellant.” Appellant’s Brief at 17. Although this
may raise a substantial question, we need not determine that because
Appellant failed to preserve it at sentencing or in a post-sentence motion.
Accordingly, it is waived.4 See Commonwealth v. Cartrette, 83 A.3d
1030, 1042-43 (Pa. Super. 2013).
Judgment of sentence affirmed.
Judge McLaughlin joins in the decision.
Judge Olson concurs in the result.
4 Even if we were to reach the merits of Appellant’s discretionary-aspects-of-
sentencing claims, we find them to be without merit. Prior to sentencing,
the trial court noted that it considered Appellant’s history, the sentencing
guidelines, a presentence investigation (PSI) report, and “the nature and
seriousness of the crime[,] which was particularly horrific. As a result, the
[trial c]ourt has imposed consecutive sentences and … in three of the four
sentences have deliberately, intentionally sentenced to the statutory
maximums.” N.T., 1/30/2018, at 21-22. The trial court gave sufficient
justification for imposing aggravated range sentences, and had the benefit of
a PSI report. See Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super.
2013) (“When a sentencing court has reviewed a presentence investigation
report, we presume that the court properly considered and weighed all
relevant factors in fashioning the defendant's sentence.”) (citation omitted).
Thus, we conclude that Appellant has failed to demonstrate that
“the sentencing court ignored or misapplied the law, exercised its judgment
for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.” Commonwealth v. Johnson, 125 A.3d 822, 826
(Pa. Super. 2015) (quoting Commonwealth v. Disalvo, 70 A.3d 900, 903
(Pa. Super. 2013)).
- 11 -
J-S47040-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2018
- 12 -