Com. v. Holloway, D. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID HOLLOWAY :
:
Appellant : No. 4012 EDA 2017
Appeal from the Judgment of Sentence December 8, 2017
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0508761-2006
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY PANELLA, J.: FILED AUGUST 29, 2019
Appellant, David Holloway, appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County, which was first
imposed after a jury found him guilty of three counts of attempted murder,
four counts of aggravated assault, and one count each of criminal conspiracy,
possessing an instrument of crime, and carrying a firearm without a license.
The trial court sentenced Appellant to an aggregate sentence of forty-seven
to one-hundred seven years of imprisonment. We affirmed Appellant’s
judgment of sentence, and the Supreme Court denied Appellant’s petition for
allowance of appeal.
Subsequently, Appellant filed a pro se petition under the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546, which raised claims asserting
ineffective assistance of counsel and that he had been illegally sentenced.
Approximately three years after its filing, PCRA counsel amended Appellant’s
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petition. The PCRA court granted partial relief to Appellant by vacating
Appellant’s sentence for conspiracy to commit murder, but denied all other
aspects of his petition.
The court held a new hearing on December 8, 2017, to resentence
Appellant for the lesser offense of conspiracy to commit aggravated assault.
As a result, the court resentenced Appellant from his initial eight to twenty-
year sentence for conspiracy, running consecutively, to a concurrent term of
five to ten years. All of Appellant’s other sentences remained unaltered.
Appellant timely appeals this resentencing. We affirm.
On December 11, 2017, three days after his resentencing hearing,
Appellant filed a notice of appeal. Thereafter,
[o]n December 27, 2017, [the sentencing court] ordered
[Appellant] to file a concise statement of matters complained of
on appeal no later than January 26, 2018. Counsel for
[Appellant], instead, filed a motion to withdraw[] as counsel in
[the sentencing court] and subsequently failed to comply with [the
sentencing court]’s December 27, 2017 Order. Additionally,
Defendant filed a pro se concise statement of matters
complain[ed] of on appeal on February 13, 2018.
Trial Court Opinion, 3/20/18, at 2 n.1. The sentencing court issued its
Pa.R.A.P. 1925(a) opinion on March 22, 2018.
Appellant’s first counsel filed a brief to this Court on April 23, 2018.
After that, the trial court permitted Appellant’s first counsel to withdraw his
representation on May 18, 2018, and appointed new counsel on May 31, 2018.
Appellant’s second counsel filed a motion for reconsideration of sentence on
July 10, 2018, but the trial court did not issue a corresponding ruling on that
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motion. Appellant’s second counsel filed a supplemental brief with this Court
on July 26, 2018.
We have already laid out the underlying facts of this case in an earlier
memorandum, wherein we remanded the matter to the sentencing court for
Appellant to properly incorporate a 1925(b) statement of record nunc pro tunc
and for the sentencing court to prepare a responsive opinion to that
statement. See Commonwealth v. Holloway, No. 4012 EDA 2017, at 2-7
(Pa. Super., filed 5/1/19). Although parties were provided the opportunity to
do so, no further supplemental briefing has been provided. Appellant and the
sentencing court have adhered to the dictates of the remand, so the matter is
now properly before us for consideration.
In his nunc pro tunc 1925(b) statement, Appellant raises seven issues,
including challenges to the legality and discretionary aspects of the sentence
imposed, the sufficiency of the evidence to support his conviction for
conspiracy, and a claim that the trial court erred in instructing the jury.
However, in reviewing the argument sections of both the first counsel’s brief
and second counsel’s supplemental brief, we note that Appellant solely
challenges the discretionary aspects of sentencing. See Appellant’s Brief, at
6 (“Appellant challenges the discretionary aspects of sentencing, not the
legality of the sentence imposed.”); Appellant’s Supplemental Brief, at 8 (“The
aggregate sentence imposed by the trial court in this case was unreasonable
and a manifest abuse of discretion.”).
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Appellant purports to raise a challenge to the legality of his sentence in
his 1925(b) statement. This challenge cannot be waived, even though
Appellant has failed to make any attempt to develop it. See Commonwealth
v. Foster, 17 A.3d 332, 334 (Pa. 2011). To the best of our ability to discern
Appellant’s claim, we understand it to be a claim that the trial court
impermissibly sentenced for multiple counts of inchoate crimes.
A person can only be convicted on a single count of conspiracy if all the
predicate crimes were part and parcel of the goal of the conspiracy. See 18
Pa.C.S.A. § 903(c). Similarly, a person can only be convicted of one inchoate
crime if the conduct at issue culminated in the commission of the same crime.
See 18 Pa.C.S.A. § 906. Importantly, these rules do not affect verdicts; they
only control sentencing. See Commonwealth v. Jacobs, 39 A.3d 977, 983
(Pa. 2012). Further, Rule 906 does not prohibit sentencing for multiple
inchoate crimes where the charges are based on distinct actions that were
intended to culminate in different crimes. See id., at 981.
Here, Appellant was convicted of one count of both conspiracy and
attempt. However, the factual bases for these crimes are distinct. The
conspiracy conviction was based on Appellant’s participation in a scheme to
rob a bar and assault the patrons inside. In contrast, the attempt conviction
was based on Appellant’s independent conduct in attempting to murder a
witness and her children outside of the bar. Appellant’s separate sentences
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for conspiracy and attempted murder do not violate either Rule 903(c) or Rule
906.
To the extent Appellant sought to raise challenges to the sufficiency of
the evidence and the jury instructions, those claims are waived due to
Appellant’s failure to include them in his brief. “Arguments which are not
properly developed are waived.” Lackner v. Glosser, 892 A.2d 21, 29 (Pa.
Super. 2006) (citation omitted). Further, our prior cases make it quite clear
that we “shall not develop an argument for [an appellant], nor shall we scour
the record to find evidence to support an argument[.]” Commonwealth v.
Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007). Turning to the only issue
presented in Appellant’s briefs, he asserts that “the sentencing court did not
fully consider the sentencing guidelines in imposing [its] sentence.”
Appellant’s Brief, at 6. Appellant states that the “sentence imposed was
unduly harsh and oppressive and did not reflect the particular circumstances
of the crimes or the [Appellant’s] character, history and rehabilitative needs.”
Id.The modification of Appellant’s sentence was purely limited to
resentencing him from the initial consecutive sentence that was imposed for
criminal conspiracy to commit murder to a new concurrent sentence imposed
for criminal conspiracy to commit aggravated assault. However, neither of
Appellant’s argument sections mention the word conspiracy nor address the
new sentence imposed after resentencing. Instead, both briefs take the
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opportunity to attack his aggregate sentence. While there is a singular
reference in the supplemental brief to the resentencing process or outcome,
it, too, is in the context of arguing that Appellant’s aggregate sentence, which
we already affirmed in Appellant’s direct appeal, is somehow defective.
In reviewing Appellant’s challenge to the discretionary aspects of his
sentence, preliminarily, we note that such a claim “must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.” Commonwealth v. Conte, 198 A.3d 1169,
1173 (Pa. Super. 2018) (citations omitted). Here, neither Appellant nor his
then counsel presented such a claim during the resentencing hearing. See
Resentencing Hearing, 12/8/17, at 17-19. Further, Appellant did not file any
post-sentence motion. As such, Appellant’s argument is waived.
Accordingly, in finding all of Appellant’s arguments either undeveloped
or waived, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/19
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