Com. v. Desir, G. ( 2015 )

J-S42027-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GEFFREY DESIR
Appellant No. 463 EDA 2015
Appeal from the PCRA Order February 6, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0002442-2013
CP-48-CR-0002443-2013
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 24, 2015
Appellant, Geffrey Desir, appeals from the February 6, 2015 order,
dismissing his petition for relief filed pursuant to the Post Conviction Relief
Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court summarized the relevant factual and procedural
background of this case as follows.
On May 13, 2013, [Appellant] entered the Freeman
Jewelers store at Palmer Park Mall in Palmer
Township, Northampton County, Pennsylvania,
where he attempted to obtain a line of store credit in
the name of Darren Moss, using a pre-paid debit
card and New York State driver’s license in the name
of Darren Moss, signing a credit application in that
name. [Appellant] had, prior [to] this occasion, used
the identifying information of Darren Moss to
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*
Former Justice specially assigned to the Superior Court.
J-S42027-15
purchase a pre-paid debit card bearing the name of
Darren Moss from a Walmart or CVS store. That
debit card was then used by [Appellant] as a means
of proving the creditworthiness of Darren Moss for
[the purpose] of obtaining credit at the jewelry
store. When [Appellant] was apprehended in
connection with these crimes, he was found to be in
possession of items of jewelry valued at $13,180
that he had obtained from the Littman Jewelers store
using the same fraudulent means.
On September 19, 2013, [Appellant] pled
guilty to one count of access device fraud, one count
of identity theft, and one count of resisting arrest
with respect to the Freeman Jewelers incident, as
well as one count of receiving stolen property with
respect to the items of jewelry found in his
possession. Immediately following the guilty plea,
[Appellant] was sentenced as follows: on the charge
of access device fraud, 12-24 months in state prison
plus a $500 fine; on the charge of identity theft, 12-
24 months in state prison plus a $500 fine; on the
charge of resisting arrest, 2-12 months in state
prison plus a $250 fine; and on the charge of
receiving stolen property, 12-24 months in state
prison plus a $250 fine. [Appellant]’s sentence for
identity theft was run consecutive to his sentence for
receiving stolen property, with all other sentences
running concurrently, for an aggregate sentence of
24-48 months in state prison.
PCRA Court Opinion, 2/6/15, at 1-2. Appellant filed a timely post-sentence
motion on September 27, 2013, which the trial court denied on October 15,
2013.
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Appellant filed a premature pro se PCRA petition on October 22, 2013.1
The PCRA court appointed counsel, who filed a motion to withdraw as
counsel pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988),
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and
their progeny. On March 7, 2014, the PCRA court entered an order
dismissing his PCRA petition and granted counsel’s petition to withdraw.
Appellant did not file a notice of appeal in this Court. On April 21, 2014,
Appellant filed a motion for reconsideration of sentence, which the trial court
denied the same day.2 Appellant filed a timely pro se notice of appeal to this
Court, which was docketed at 1590 EDA 2014. On November 17, 2014,
Appellant filed a counseled application in this Court to discontinue his
appeal, which we granted on December 4, 2014.3
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1
In the interim, Appellant filed pro se untimely notices of appeal from his
judgment of sentence on December 2, 2013, which were docketed in this
Court at 3363 EDA 2013 and 3364 EDA 2013. On February 3, 2014, this
Court entered an order dismissing the appeal at 3363 EDA 2013 as
duplicative of the appeal at 3364 EDA 2013. Superior Court Order, 3363
EDA 2013, 2/3/14, at 1. On March 3, 2014, this Court entered an order
quashing the appeal at 3364 EDA 2013 as untimely filed. Superior Court
Order, 3364 EDA 2013, at 1. Appellant did not file a petition for allowance
of appeal with our Supreme Court.
2
It appears from the certified record that the trial court did not treat this
filing as a PCRA petition.
3
We note that our Supreme Court’s general rule is that “when an appellant's
PCRA appeal is pending before a court, a subsequent PCRA petition cannot
be filed until the resolution of review of the pending PCRA petition by the
highest state court in which review is sought, or upon the expiration of the
(Footnote Continued Next Page)
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In the interim, Appellant filed a counseled PCRA petition on October
28, 2014. Appellant filed an amended PCRA petition on November 14, 2014.
On February 6, 2015, the PCRA court entered an order denying Appellant’s
PCRA petition. On February 13, 2015, Appellant filed a timely notice of
appeal.4
On appeal, Appellant raises the following two issues for our review.
I. [Whether t]he offense of identity theft, 18
Pa.C.S.A. § 4120(a) merges with the offense of
access device fraud, 18 Pa.C.S.A.
§ 4106(a)(1)(ii) such that the sentencing of a
defendant on both offenses constitutes an
illegal sentence[?]
II. [Whether t]he offenses of identity theft and
access device fraud to which Appellant pleaded
guilty arose out of a single criminal act[?]
Appellant’s Brief at 4.
We begin by noting our well-settled standard of review. “In reviewing
the denial of PCRA relief, we examine whether the PCRA court’s
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(Footnote Continued)
time for seeking such review.” Commonwealth v. Lark, 746 A.2d 585,
588 (Pa. 2000). However, as noted above, the PCRA court never treated
Appellant’s April 21, 2014 motion for reconsideration of sentence as a PCRA
petition. Furthermore, due to Appellant’s discontinuance of the appeal from
the trial court’s order denying said motion, this Court never had an
opportunity to opine as to whether said motion should have been treated as
a PCRA petition. Based on these considerations, we conclude that Lark’s
rule is not implicated in this case, as when the instant PCRA petition was
filed on October 28, 2014, Appellant did not have any PCRA appeals pending
in this Court.
4
Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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determination is supported by the record and free of legal error.”
Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation
marks and citation omitted). “The scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light most
favorable to the prevailing party at the trial level.” Commonwealth v.
Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled
that a PCRA court’s credibility determinations are binding upon an appellate
court so long as they are supported by the record.” Commonwealth v.
Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this
Court reviews the PCRA court’s legal conclusions de novo. Commonwealth
v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).
Appellant’s issues on appeal only concern the doctrine of merger. A
claim that crimes should have merged for sentencing purposes raises a
challenge to the legality of the sentence. Commonwealth v. Williams,
980 A.2d 667, 672 (Pa. Super. 2009), appeal denied, 990 A.2d 730 (Pa.
2010). We begin by noting that a challenge to the legality of the sentence
can never be waived and may be raised by this Court sua sponte.5
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5
We note that although Appellant raised this same merger issue in his brief
in his last appeal at 1590 EDA 2014, this Court never reached a decision on
the question since the appeal was discontinued. As a result, the claim is not
previously litigated within the meaning of the PCRA. See generally 42
Pa.C.S.A. §§ 9543(a)(3), 9544(a)(2). In addition, because merger issues
pertain to the legality of the sentence, the waiver provisions at Section
(Footnote Continued Next Page)
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Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014)
(citation omitted); see also Commonwealth v. Borovichka, 18 A.3d
1242, 1254 n.8 (Pa. Super. 2011) (stating, “[a] challenge to the legality of a
sentence … may be entertained as long as the reviewing court has
jurisdiction[]”). It is also well established that “[i]f no statutory
authorization exists for a particular sentence, that sentence is illegal and
subject to correction.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa.
Super. 2014) (citation omitted). “An illegal sentence must be vacated.” Id.
“Issues relating to the legality of a sentence are questions of law[.] … Our
standard of review over such questions is de novo and our scope of review is
plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014)
(citations omitted), vacated on other grounds, 111 A.3d 168 (Pa. 2015).
In examining whether Appellant’s offenses should have merged, we
consider the following.
The preliminary consideration [in determining
merger for sentencing purposes] is whether the facts
on which both offenses are charged constitute one
solitary criminal act. If the offenses stem from two
different criminal acts, merger analysis is not
required. If, however, the event constitutes a single
criminal act, a court must then determine whether or
not the two convictions should merge.
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(Footnote Continued)
9544(b) do not apply. Therefore, although Appellant could have raised his
merger claim previously, it is not waived. See generally id. § 9544(b).
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Commonwealth v. Walls, 950 A.2d 1028, 1031 (Pa. Super. 2008)
(brackets in original), appeal denied, 991 A.2d 313 (Pa. 2010).
Furthermore, in order for two convictions to merge, the elements of the
lesser-included offense must be subsumed by the elements of the greater
offense. Specifically, Section 9765 of the Sentencing Code provides as
follows.
§ 9765. Merger of sentences
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 [Appellant]
only on the higher graded offense.
42 Pa.C.S.A. § 9765.
As it is dispositive of the instant appeal, we need only address
Appellant’s second issue, i.e., whether the offenses here arose from one
single criminal act. Appellant avers that the offenses to which he pled guilty,
access device fraud and identity theft arose from one singular criminal act.
Appellant’s Brief at 21.
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. This 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.
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Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa. Super. 2012)
(internal quotation marks and citations omitted), appeal denied, 63 A.3d 776
(Pa. 2013).
In this case, the information filed by the Commonwealth alleges that
for access device fraud, Appellant used “an American Express debit card with
knowledge that the card belonged to another person, namely Darren Moss,
who did not authorize that act, who did not authorize its use.” Criminal
Information, 8/16/13, at 1. For the charge of identity theft, the
Commonwealth alleges that Appellant “was in possession of one (1) New
York State driver’s license … issued to Darren Moss, one (1) New Jersey
driver’s license … issued to Peter Gatto, one (1) American Express debit card
issued to Darren Moss, and one (1) American Express debit card issued to
Peter Gatto.” Id. at 3.
The PCRA court concluded that the offenses to which Appellant pled
guilty did not arise from a single criminal act and thus the merger doctrine
does not apply.
At the time of his plea, [Appellant] admitted
that he used the fraudulently obtained pre-paid debit
card in Darren Moss’s name – along with Darren
Moss’s driver’s license – as a means of establishing
creditworthiness to obtain store credit in the name of
Darren Moss at the Freeman Jewelers store. Thus[,]
it is clear from his plea that [Appellant] admitted to
using an access device – a debit card – in an attempt
to obtain property with knowledge that the access
device was issued to another person who had not
authorized its use.
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Accordingly, it is clear that [Appellant]’s pleas
to the charges of identity theft and access device
fraud were predicated on two separate factual bases.
PCRA Court Opinion, 2/6/15, at 5.
We conclude the record supports the PCRA court’s findings. Here the
criminal information alleges that Appellant committed access device fraud
utilizing a prepaid American Express debit card, and identity theft using a
New York State driver’s license. In our view, this is sufficient to show that
the two offenses here did not arise from a singular criminal act. See
Commonwealth v. Jenkins, 96 A.3d 1055, 1062 (Pa. Super. 2014)
(concluding that the defendant’s convictions stemmed from multiple criminal
acts based on the Commonwealth’s criminal information), appeal denied,
104 A.3d 3 (Pa. 2014). Therefore, the PCRA court correctly concluded that
Appellant’s sentences did not merge.6
Based on the foregoing, we conclude Appellant’s sole issue on appeal
is devoid of merit. Accordingly, the PCRA court’s February 6, 2015 order is
affirmed.
Order affirmed.
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6
In light of our conclusion that Appellant’s offenses did not arise from a
singular criminal act, we express no opinion on whether identify theft and
access device fraud are lesser-included offenses of each other.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2015
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