Com. v. Penhollow, D. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DENNIS L. PENHOLLOW JR. :
:
Appellant : No. 906 WDA 2021
Appeal from the Judgment of Sentence Entered June 16, 2021
In the Court of Common Pleas of Jefferson County
Criminal Division at CP-33-CR-0000147-2021
BEFORE: PANELLA, P.J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED: OCTOBER 17, 2022
Dennis L. Penhollow, Jr. (Appellant), appeals from the judgment of
sentence imposed after he pled guilty to one count each of burglary, robbery,
conspiracy to commit burglary, and conspiracy to commit robbery.1 Appellant
challenges the denial of his post-sentence motion to withdraw his guilty plea.
After careful review, we affirm.
According to the affidavit of probable cause of Pennsylvania State Police
Trooper Kyle Lowry (Trooper Lowry) dated January 25, 2021, Trooper Lowry
was dispatched to the scene of an assault at 228 Main Street, Anita,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1See 18 Pa.C.S.A. §§ 3502(a)(1)(i), 3701(a)(1)(ii), 903. Appellant also pled
guilty to six counts of theft by unlawful taking related to his theft of firearms.
See 18 Pa.C.S.A. § 3921(a). Those counts merged at sentencing.
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Pennsylvania. Affidavit of Probable Cause, filed 2/8/21, at 1. Trooper Lowry
explained:
At the residence, patrol members met with victims Megan Montini
[(Montini)], George Slider [(Slider)], and Dennis Dinger
[(Dinger)]. Montini was observed covered in blood and with a
laceration on her head and a black eye from the assault. … Montini
was subsequently rushed to the Punxsutawney ER via ambulance.
When questioned on scene[,] Slider and Dinger related they
arrived at the residence and observed a gray Hyundai Elantra with
a New York registration parked in front of Slider’s apartment.
Both Slider and Dinger entered the residence and were confronted
with two males brandishing knives. The two males subsequently
chased Slider and Dinger out of the residence while … brandishing
the knives. Slider and Dinger then observed the two males
entering the gray Hyundai Elantra and fleeing towards
Punxsutawney. Slider related the only person he knew from New
York was Blake Truver [(Truver),] who matched the description of
one of the males.
The vehicle description was [relayed] to dispatch[,] who
forwarded it to Patrol members. The vehicle was subsequently
observed by a PSP Patrol member traveling north on State Route
37 toward Brookville, PA. A traffic stop was initiated[;] however
the vehicle then fled north of SR 36 leading troopers on a pursuit
that ended with the vehicle crashing. Truver was identified as the
driver of the vehicle while [Appellant] was identified as the front
seat passenger. … Both Truver and [Appellant] were life flighted
from the scene to Erie, PA.
The vehicle was towed back to PSP Punxsutawney …. Inside the
vehicle in plain view [sic] guitars with an amplifier, kni[v]es
matching the description provide[d] by Slider and Dinger and a
cellphone matching the description provided by Montini.
Id. at 1-2.
At the hospital, Montini described the incident to Trooper Lowry, who
included the following details in his affidavit of probable cause:
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… Montini described the incident as at approximately 1000 hours,
one male arrived at her house and related[,] “surprise it’s Mike”.
[Not knowing] who the male was Montini shut the door. Montini
[relayed] approximately 15-20 minutes later, the same male
arrived back at her residence. … While communicating with the
one male, she slightly opened the door to which [sic] she was
struck in the top of the head with a tire iron. The actor then
proceeded to strike her numerous times with a closed fist and held
her down while the other actor stole seven firearms, guitars, [a]
cell phone, car keys and her purse. … Montini [was] treated at
the Punxsutawney [hospital] for a laceration to the head requiring
stiches and a CT scan to determine the extent of her injuries.
Montini was interviewed at the PSP Punxsutawney, during this
interview Montini [explained] that while being held down by one
actor (Truver), the other actor [(Appellant)] was yelling “just do
it, just stab her. Spill her blood more.”
Id. at 2.
On January 25, 2021, the Commonwealth filed a criminal information
charging Appellant with the above crimes; the Commonwealth also charged
Appellant with aggravated assault, 18 Pa.C.S.A. § 2702(a)(1). Criminal
Information, 1/25/21. On April 27, 2021, the trial court entered an order
stating: “[T]he defendant’s last day to enter into a negotiated plea agreement
is June 2, 2021; jury selection is scheduled for June 9, 2021.” Order, 4/27/21.
On May 26, 2021, the trial court scheduled a plea hearing for June 2, 2021.
On June 2, 2021, Appellant completed a written guilty plea colloquy and
entered an open guilty plea to the above charges.2 The trial court thereafter
sentenced Appellant to an aggregate 18 - 50 years in prison. Appellant filed
____________________________________________
2 The Commonwealth nolle prossed the charge of aggravated assault.
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a post-sentence motion seeking to withdraw his guilty plea and for
modification of sentence. The trial court denied Appellant’s request to
withdraw his guilty plea, but corrected the sentence to properly reflect that
Appellant’s conspiracy convictions were for robbery and burglary (not two
burglaries). See Order, 7/1/21, at 1-2 (unnumbered). The trial court
otherwise denied relief. See id. Appellant timely filed a notice of appeal.
Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for review:
1. Whether the [trial] court erred by denying [Appellant’s]
request to withdraw his guilty plea on the basis that said plea
was not knowingly, voluntarily and intelligently entered when
the Guideline Sentence Forms provided by the Commonwealth
in conjunction with its plea offer applied a Deadly Weapons
Enhancement only to one count of Burglary, but the guideline
forms included in [Appellant’s] presentence report, and utilized
by the court at sentencing, applied the Deadly Weapons
Enhancement to one count each of Conspiracy to commit
Burglary, Robbery, and Conspiracy to commit Robbery, in
addition to the one Burglary count[?]
2. Whether the [trial] court erred by denying [Appellant’s]
request to withdraw his guilty plea when the court scheduled
him for jury selection on June 9, 2021, and established June 2,
2021, as his last day to enter a negotiated plea in violation of
Pa.R.Crim.P. 590(B)(3), and [Appellant] did not receive a plea
offer from the Commonwealth until approximately one hour
before he was scheduled to go before the court on June 2,
2021[?]
3. Whether the [trial] court erred by sentencing [Appellant] for
two separate Conspiracy Counts, one each for Burglary and
Robbery, when the evidence of record does not support the
court’s conclusion that there were two distinct conspiracies at
separate times[?]
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4. Whether the [trial] court erred by refusing to modify
[Appellant’s] aggregate sentence of 18 to 50 years when the
sentencing guidelines used by the court were improper in the
following respects:
(a) The offense gravity score for the Conspiracy/Burglary
charge was based on a deadly weapon-used
enhancement for which [Appellant] was not put on
notice[; Appellant] could not have used a deadly weapon
during the conspiracy phase of the crime and there is
nothing in the record that would support a finding that
he possessed a deadly weapon at the time of the
conspiracy[?]
(b) The offense gravity score for the Robbery charge was
based upon a deadly weapon-used enhancement for
which [Appellant] was not put on notice[?]
(c) The offense gravity score for the Conspiracy/Robbery
charge was based upon a deadly weapons-used
enhancement for which [Appellant] was not put on
notice. [Appellant] could not have used a deadly weapon
during the conspiracy phase of the crime and there is
nothing in the record that would support a finding that
he possessed a deadly weapon at the time of the
conspiracy[?]
Appellant’s Brief at 4-5.
Appellant first argues the trial court improperly denied his request to
withdraw his guilty plea. Id. at 12. Appellant acknowledges that he agreed
to an “open plea.” Id. Notwithstanding, he asserts “this was not an entirely
open plea.” Id. According to Appellant, the terms of the plea “consisted of
the sentencing guidelines presented by the Commonwealth in conjunction with
its plea offer, and the Commonwealth’s offer to withdraw the Aggravated
Assault charge.” Id. (citation omitted). Appellant claims the sentencing
guidelines included in his written plea did not put him on notice that the deadly
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weapon enhancement (DWE) would apply to his conviction of conspiracy to
commit robbery. Id. at 13. Appellant argues:
Conspiracy to Commit Robbery carries an Offense Gravity Score
of 9. With [Appellant’s] Prior Record Score of 5, the standard
sentencing range would be 48 to 60 months. The total guideline
range upon which [Appellant] relied in deciding to plead guilty was
therefore 234 to 282 months (or 19½ years to 23½ years).
The sentencing guildelines set forth in the presentence
report presented to the court were as follows: …
Conspiracy/Robbery – 66 to 78 months. The guidelines set
forth for Conspiracy/Robbery purported to not apply the
DWE, but the enhancement was in fact applied[;] otherwise
the sentencing range would have been 48 to 60 months. …
[Appellant] understood and voluntarily accepted the plea offer
proposed by the Commonwealth with a total guideline range of
234-282 months. He did not voluntarily, knowingly and
intelligently agree to a plea offer that carried a total guideline
range of 288 to 336 months….
Id. at 13-14 (citations omitted, emphasis added)).
This Court reviews the denial of a request to withdraw a guilty plea for
an abuse of discretion. Commonwealth v. Davis, 191 A.3d 883, 889 (Pa.
Super. 2018). An abuse of discretion is more than an error in judgment; we
will not find an abuse of discretion unless the trial court’s judgment was
manifestly unreasonable, or the result of partiality, bias, or ill
will. Commonwealth v. Gordy, 73 A.3d 620, 624 (Pa. Super. 2013).
Appellant sought to withdraw his guilty plea after he was sentenced.
[P]ost-sentence motions for withdrawal are subject to higher
scrutiny since courts strive to discourage entry of guilty
pleas as sentence-testing devices. A defendant must
demonstrate that manifest injustice would result if the court were
to deny his post-sentence motion to withdraw a guilty plea.
Manifest injustice may be established if the plea was not tendered
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knowingly, intelligently, and voluntarily. In determining whether
a plea is valid, the court must examine the totality of
circumstances surrounding the plea. A deficient plea does not per
se establish prejudice on the order of manifest injustice.
Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009) (citations
omitted).
“Our law presumes that a defendant who enters a guilty plea was aware
of what he was doing,” and “[h]e bears the burden of proving
otherwise.” Commonwealth v. Pollard, 832 A.2d 517, 523 (Pa. Super.
2003) (citations omitted). To ensure a plea is voluntary, knowing, and
intelligent,
Rule 590 of the Pennsylvania Rules of Criminal Procedure requires
that a trial court conduct a separate inquiry of the defendant
before accepting a guilty plea. ... As the Comment to Rule 590
provides, at a minimum, the trial court should ask questions to
elicit the following information:
(1) Does the defendant understand the nature of the charges to
which he or she is pleading guilty or nolo contendere?
(2) Is there a factual basis for the plea?
(3) Does the defendant understand that he or she has the right to
trial by jury?
(4) Does the defendant understand that he or she is presumed
innocent until found guilty?
(5) Is the defendant aware of the permissible range or sentences
and/or fines for the offenses charged?
(6) Is the defendant aware that the judge is not bound by the
terms of any plea agreement tendered unless the judge accepts
such agreement?
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Commonwealth v. Hart, 174 A.3d 660, 667-68 (Pa. Super. 2017) (quoting
Pa.R.Crim.P. 590, cmt.). Inquiry into the above areas is mandatory.
Commonwealth v. Willis, 369 A.2d 1189, 1190 (Pa. 1977). “The purpose
of [Rule 590] is to [e]nsure that the defendant fully understands the nature
of the crimes to which he or she is pleading guilty and the rights that are being
waived by the plea.” Commonwealth v. Carter, 656 A.2d 463, 465 (Pa.
1995). The Comment to Rule 590 further states that “nothing in the rule
would preclude the use of a written colloquy that is read, completed, signed
by the defendant, and made part of the record of the plea proceedings.”
Pa.R.Crim.P. 590, cmt.
Our review discloses that Appellant executed a written plea colloquy
which accurately informed Appellant of the maximum punishment he could
receive for each crime, as well as the standard and aggravated guideline
ranges. Written Colloquy, 6/2/21. For the crimes of robbery, burglary and
conspiracy, the colloquy indicated: “Guideline Enhancements N/A” Id. The
colloquy also indicated Appellant was entering an “open plea.” Id. The written
plea colloquy did not advise Appellant that the trial court could impose
consecutive sentences, or specifically advise Appellant the court could
sentence outside of the guideline ranges. See id.At the oral plea colloquy, the trial court did not state, on the record, the
applicable guideline ranges. Rather, the court inquired:
THE COURT: So[,] you understand everything that’s going on?
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[Appellant]: Yes.
THE COURT: Do you understand the guideline ranges?
[Appellant]: Yes. Now that I know I’ve got ten charges when I
thought I only had four, yes.
THE COURT: Do you understand the maximum fines and
punishments?
[Appellant]: Yes.
THE COURT: Did you see the [court] movie concerning your plea
and sentence rights?
[Appellant]: Yes.
THE COURT: Did you understand that movie?
[Appellant]: Yes.
N.T., 6/2/21, at 3.
The trial court inquired as to Appellant’s understanding of the elements
of the crimes charged, and Appellant’s right to a jury trial. See id. at 3-5.
However, Appellant waived “a reading of the facts,” id. at 5, and the trial court
did not reference a DWE. Upon review, we conclude the totality of
circumstances do not demonstrate “prejudice on the order of manifest
injustice.” See Broaden, 980 A.3d at 129; see also Commonwealth v.
Moser, 921 A.2d 526, 528-29 (Pa. Super. 2007) (Pennsylvania law does not
“require the defendant to be pleased with the outcome of his decision to enter
a plea of guilty[; a]ll that is required is that his decision to plead guilty be
knowingly, voluntarily and intelligently made.”).
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The record reveals that a presentence investigation report was
prepared, and the report included the guideline ranges for conspiracy to
commit robbery with a DWE. At sentencing, defense counsel acknowledged
reviewing the presentence investigation report. N.T., 6/16/21, at 2. Counsel
did not object to the ranges of sentences in the report. See id.This Court encountered a similar issue in Broaden, supra, where the
defendant pled guilty to several counts of aggravated assault, among other
offenses. Broaden, 980 A.2d at 126-27. Nearly two months after the
defendant entered his plea, the Commonwealth filed a notice of intent to seek
a “second strike” mandatory minimum sentence under 42 Pa.C.S.A. § 9714,
based on the defendant’s prior conviction for robbery. Id. at 127 & n.2. One
month later, the trial court sentenced the defendant to the 10-year mandatory
minimum under Section 9714. Id. at 127. The defendant filed a timely post
sentence motion seeking to withdraw his plea, which the trial court
denied. Id.
On appeal, this Court concluded the defendant’s plea “was deficient”
because the Commonwealth failed to fully inform him of its intent to seek a
mandatory minimum sentence prior to the entry of the plea. Id. at 130 &
n.4. Nevertheless, we did not grant relief, reasoning that the
Commonwealth’s presentence notice provided the defendant with “ample time
to prepare a motion to withdraw his guilty plea,” but he “declined this
opportunity and chose to proceed with the sentencing.” Id. at 131. We
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affirmed the judgment of sentence, holding that “[b]y opting to proceed
with sentencing, [the defendant] waived his contention that his guilty plea
was not knowing because he had not been notified of the mandatory minimum
sentence.” Id.
Similarly, in this case, Appellant was apprised in the presentence
investigation report of the applicable guideline ranges for his charges.
Appellant did not object, and proceeded with sentencing. See N.T., 6/16/21,
at 2. In addition, Appellant was advised in his written plea colloquy of the
maximum sentences for each crime. Written Colloquy, 6/2/21. Under these
circumstances, we cannot conclude that Appellant suffered “prejudice on the
order of manifest injustice.” See Broaden, 980 A.2d at 129. Thus,
Appellant’s first issue does not merit relief.
In his second issue, Appellant argues the trial court improperly denied
his request to withdraw his plea based on the trial court’s violation of
Pa.R.Crim.P. 590(B). Rule 590(B)(3) prohibits any local rule “mandating
deadline dates for the acceptance of a plea entered pursuant to a plea
agreement.” Pa.R.Crim.P. 590(B)(3). Appellant claims the trial court violated
Rule 590 by ordering that the “last day to enter a negotiated plea agreement
is June 2, 2021.” Appellant’s Brief at 16. According to Appellant,
the court’s violation of Rule 590(B)(3)[] was compounded by the
fact that the Commonwealth did not make a plea offer to
[Appellant] until 12:52 p.m. on June 2, 2021, and [Appellant] was
required to appear before the court at 2:00 p.m. that day. … The
violation of Rule 590, coupled with the Commonwealth’s “eleventh
hour” plea offer and the discrepancy between the sentencing
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guidelines presented by the Commonwealth in conjunction with
said plea offer and the sentencing guidelines employed by the
court, deprived [Appellant] of any meaningful opportunity to
understand the plea offer and to voluntarily and intelligently
decide whether or not to plead guilty. [Appellant] had
approximately one hour to decide if he wanted to accept the plea
offer or lock himself into picking a jury.
Appellant’s Brief at 16-17.
Upon review, we discern no violation of Rule 590 by the trial court, which
did not promulgate a local rule mandating a deadline for the plea agreement.
Further, our review discloses that defense counsel did not request an
extension of time to consider the plea offer, or a continuance of the trial date.
The trial court explained:
The court set June 2, 2021 as [Appellant’s] last day to enter a
negotiated plea. It did so, not pursuant to a local rule, but in
consideration of this specific case. Rule 590(B)(3) did not disallow
that. Nor did it preclude the Commonwealth from waiting until
that day to make an offer, and [Appellant’s] bald assertion is not
proof [the court’s] decision to do so in this case left him without
sufficient time to consult with his attorney and make a knowing
and intelligent decision to accept the offer[,] rather than pick a
jury the next week. Counsel certainly knew, therefore, that he
and his client had the entire morning to discuss the pros and cons
of pleading guilty versus going to trial.[FN] The court thus
presumes that counsel did his job appropriately and was satisfied
while standing with [Appellant] that day that he was entering
knowing and voluntary pleas of guilty, and the record does not
indicate otherwise.
[FN]The order scheduling June 2 as [Appellant’s] last day to plead
did not in fact dictate a time cut-off, and counsel, having done so
with prior clients, knew the court would interrupt afternoon []
hearings to accommodate defendants who wished to plead guilty
even after arraignment, plea, and sentencing court was officially
concluded.
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As the record reflects, [Appellant] did not request a continuance;
he did not allege orally or in writing that he needed more time
under the circumstances to consider his options. Nor did he
indicate at his plea or sentencing hearing that his decision to plead
guilty was anything other than volitional. Given the intensity with
which he made his plea for a light sentence, (see Sentencing
Transcript, 06/16/21, pp. 4-13, 17, & 22-23), the court cannot
reasonably attribute his silence to a reticence to speak on the
record ….
Trial Court Opinion, 3/14/22, at 2-3 (one footnote in original; one footnote
and some capitalization omitted). As the record supports the trial court’s
reasoning, Appellant’s second issue does not merit relief.
In his third issue, Appellant challenges the imposition of separate
sentences for his guilty plea to two counts of criminal conspiracy. Appellant’s
Brief at 17. Appellant claims the record does not support the existence of two
distinct conspiracies. Id. Appellant argues: “If a person conspires to commit
a number of crimes, he is guilty of only one conspiracy so long as such multiple
crimes are the object of the same agreement or a continuous conspiratorial
relationship.” Id. (emphasis in original). According to Appellant, there are
no factual allegations establishing two separate and distinct conspiracies. Id.
at 18. Appellant directs our attention to Commonwealth v. Lore, 487 A.2d
841 (Pa. Super. 1984), in which we held that a defendant should have been
sentenced on only one count of conspiracy because his acts were part of a
common scheme or design. Id. at 18-19.
The Crimes Code states:
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If a person conspires to commit a number of crimes, he is guilty
of only one conspiracy so long as such multiple crimes are the
object of the same agreement or continuous conspiratorial
relationship.
18 Pa.C.S.A. § 903(c) (emphasis added).
Here, the record demonstrates that Appellant was aware he was charged
and sentenced with separate counts of criminal conspiracy.
Appellant’s criminal information charged him with only one count of
criminal conspiracy:
In that the actor did with the intent of promoting and or facilitating
the crimes of Burglary, Robbery, Aggravated Assault, Theft by
Unlawful Taking[,] agree with Blake Truver, co-actor, that they or
one or more of them will engage in conduct which constitutes such
crime by entering a residence that is adapted for overnight
accommodations belonging to Megan Montini, victim, who was
home at the time and commits bodily injury to the victim by
striking her with a tire iron causing a laceration to her head and
striking her numerous times with a closed fist and holding her
down while one of them stole items from the residence.
Criminal Information, 5/4/21, Count 2.
However, on June 2, 2021, the Commonwealth and Appellant
stipulated to amending the criminal information to include the additional, now
disputed, count of conspiracy to commit robbery. Stipulation Amending
Information, 6/2/21. In his written plea colloquy, Appellant entered an open
guilty plea to two counts of conspiracy, and the count of aggravated assault
was nolle prossed. Written Plea Colloquy, 6/2/21.
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At the plea hearing, the trial court asked Appellant whether he
understood the nature of the charges against him, including the separate
charges for conspiracy to commit burglary and conspiracy to commit robbery:
THE COURT: Do you understand that for Burglary, the
Commonwealth would have to prove beyond a reasonable doubt
that you or with another entered a building with the intention of
committing a crime inside that building?
[Appellant]: Yes.
THE COURT: Do you understand that for Conspiracy to
Commit Burglary, the Commonwealth would have to prove
beyond a reasonable doubt that you agreed with another person
that either you or them or someone else would enter the building
to commit the burglary; do you understand that?
[Appellant]: Yes.
THE COURT: For Robbery, the Commonwealth would have to
prove beyond a reasonable doubt that through the threat of force,
you committed a crime or attempted to take the property from
another person, you or another; do you understand that?
[Appellant]: Yes.
THE COURT: For Conspiracy to Commit Robbery, the
Commonwealth would have to prove beyond a reasonable doubt
that you agreed with another person that either you or that person
or someone else would commit the robbery; do you understand
that?
[Appellant]: Yes.
N.T., 6/2/21, at 4-5 (emphasis added).
In addition, the presentence investigation report recommended
separate sentences for Appellant’s convictions of conspiracy to commit
burglary and conspiracy to commit robbery. Presentence Investigation
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Recommendation Counts 2, 11. Finally, in denying Appellant’s post-sentence
motion, the trial court explained:
[T]he evidence showed there were two different conspiracies at
two separate times: One to commit a burglary by entering a house
for the purpose of taking guns; and a separate conspiracy to
commit robbery on the victim who was present in the house during
the burglary. There was a conversation between the defendants
separately about the robbery after the burglary started. As such,
those two conspiracies do not merge as they are separate and
distinct conspiracies.
Trial Court Order, 7/1/21, at 2 (unnumbered).
We recognize that on a single occasion, there may be a single agreement
to commit two crimes. See Commonwealth v. Grove, 526 A.2d 369, 379
(Pa. Super. 1987) (when on a single occasion there is a single agreement to
commit two crimes, e.g., murder and arson, a single conspiracy exists).
Likewise, a single conspiratorial agreement may involve a continuing course
of criminal conduct involving the repetition of a single crime or the commission
of a series of crimes. See Commonwealth v. Perez, 553 A.2d 79, 79-80
(Pa. 1988) (finding a single conspiracy to commit multiple violations of
separate statutes against the distribution of marijuana and the distribution of
cocaine). In this case, however, Appellant agreed he committed conspiracy
to commit robbery and conspiracy to commit burglary, and was informed that
he could be sentenced separately for those crimes. Accordingly, we discern
no error by the trial court in imposing separate sentences for Appellant’s two
conspiracy convictions.
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In his fourth and final issue, Appellant challenges the offense gravity
score for his conspiracy/burglary charge, based on a deadly weapon used
enhancement. Appellant’s Brief at 19. Appellant claims the trial court erred
because there was no evidence he used a deadly weapon during the
conspiracy, and he was not placed on notice of the enhancement. Id. at 19-
20.
The trial court refuted this claim, explaining:
The facts to which [Appellant] pled guilty established that he and
his co-conspirator did in fact use a tire iron to strike the victim’s
head, and the [c]ourt need not further pontificate about whether
a tire iron constitutes a deadly weapon when used in that manner.
[T]he application of the enhancement was at the [c]ourt’s sole
discretion, moreover … that [the court] failed to factor in how the
Commonwealth completed its sentencing guideline sheets did not
affect whether it abused its sentencing discretion.
Even assuming the [c]ourt used the wrong sentencing
matrix—deadly weapon used rather than deadly weapon
possessed—with respect to any of the Felony 1 charges, [] it is
evident from the record that [Appellant] did not suffer prejudice
as a result.[FN] The only reason the [c]ourt sentenced [Appellant]
within the mitigated range on the Conspiracy to Commit Burglary
and ignored the guidelines with respect to Conspiracy to Commit
Robbery was because [the court] did not want his overall
minimum to exceed 20 years. It also did not intend to go much
lower than 20 years, though. ([See N.T., 6/16/21,] at 14-26).
As it made clear on the record, [the court] utilized the guidelines
only to the extent they helped it achieve its goal, the apparent
implication being that it would not have given [Appellant] the
same benefit, i.e., mitigating one Conspiracy sentence and
ignoring the guidelines on the other, had it utilized the less
onerous matrix.
[FN]The [c]ourt completely ignored the guidelines when it
sentenced [Appellant] to serve 2½ - 10 years in prison for
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Conspiracy to Commit Robbery. [Appellant’s] calculations … are
thus irrelevant.
The [c]ourt would further note that it did in fact consider
[Appellant’s] role in the commission of the crimes to which he pled
guilty and, detailing its analysis of the relevant factors in open
court, concluded that it did not warrant a sentence less than 18-
50 years in prison. (See id.).
Trial Court Opinion, 3/14/22, at 3 (emphasis and footnote in original).
As the trial court’s reasoning comports with the record and law, we rely
on the reasoning with regard to Appellant’s final issue. See id.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2022
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