Com. v. Quick, E. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
EDDIE QUICK :
:
Appellant : No. 2115 EDA 2019
Appeal from the Judgment of Sentence Entered October 17, 2017,
in the Court of Common Pleas of Monroe County,
Criminal Division at No(s): CP-45-CR-0002718-2015.
BEFORE: BOWES, J., KUNSELMAN, J., and STRASSBURGER, J.*
MEMORANDUM BY KUNSELMAN, J.: Filed: April 15, 2020
Eddie Quick appeals, nunc pro tunc, from the judgment of sentence
imposed after a jury convicted him of robbery of a motor vehicle, robbery
(threat of serious bodily injury), and other related crimes.1 We affirm.
Two months after maxing-out an eight-year sentence in New Jersey for
violent crimes, Quick “carjacked a [Ford Fusion] belonging to [Richard Lebano]
while brandishing a knife and then lead police on a dangerous, high-speed
pursuit on Interstate 80.” Trial Court Opinion, 2/14/18, at 1. After exceeding
110 miles per hour, weaving through traffic, speeding upon the berm, and
driving over a spike-strip, Quick crashed the filched Ford Fusion into a light
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* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S.A. §§ 3702(a), 3701(a)(1)(ii), 2706(a)(1), 907(a), 2705, 3921(a),
3925(a), and 75 Pa.C.S.A. §§ 3733(a), 3736(a), and 3714(a), respectively.
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pole. He darted from the wreckage and ran into a nearby woodlands. Quick,
as it turned out, was not quick enough. Chasing after him, an officer soon
tackled and arrested Quick. Police then inventoried the Fusion, wherein they
discovered a duffle bag containing a military-grade, KA-BAR knife.
At trial, the “Commonwealth called numerous witnesses and submitted
eight exhibits, including the knife . . . .” Id. at 2. “Mr. Lebano testified that
during the robbery [Quick] pulled a knife; threatened him with the weapon;
and, at one point, came at him with the knife in hand. Mr. Lebano, who had
been in the military, accurately described the weapon as a military, KA-BAR
knife,” and identified it in court as Quick’s weapon. Id. at 5.
The jury convicted Quick of the robberies and other crimes, and the
matter proceeded to sentencing. The trial court imposed the following terms
of imprisonment: for robbery of a motor vehicle, ten to twenty years, and for
robbery with threat serious bodily injury, ten to twenty years.2 The trial court
ordered all of Quick’s sentences to run consecutively, resulting in an aggregate
sentence of 26 years and 11 months to 51 years and 10 months of
incarceration.
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2 The trial court also sentenced Quick for the other convictions as follows:
Count 9, fleeing and eluding a police officer, 21–42 months; Count 11,
terroristic threats, 19-38 months; Count 12, possession of an instrument of
crime, 19-38 months; and Count 13, recklessly endangering another person,
12-24 months. The court imposed a fine for Quick’s summary convictions of
reckless and careless driving, and concluded that his convictions for theft and
receiving stolen property merged for sentencing purposes.
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On November 8, 2018, Quick filed a pro se PCRA3 petition. The PCRA
court eventually reinstated Quick’s direct appellate rights nun pro tunc. This
timely appeal followed.
Quick raises four issues. We have rephrased them for simplicity’s sake
as follows:
1. Whether the trial court erred as a matter of law and
abused its discretion by permitting evidence regarding
a weapon where the Commonwealth failed to establish
a chain of custody.
2. Whether the robbery charges should have merged for
sentencing purposes.
3. Whether the trial court misapplied the mandatory
sentencing provisions.
4. Whether the trial court abused its discretion in
fashioning the aggregate sentence.
See Quick’s Brief at 9 (excess capitalization omitted). We address each issue
in turn.
A. Admission of the Knife into Evidence
Quick first claims the trial court should not have admitted into evidence
the knife that he used to rob Mr. Lebano. In Quick’s view, the Commonwealth
failed to establish a chain of custody proving that the weapon was the actual
knife from the carjacking. Quick’s Brief at 15 (citing Commonwealth v.
Morrow, 650 A.2d 907 (Pa. Super. 1994)).
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3 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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He acknowledges that “[p]hysical evidence may be properly admitted
[at trial] despite gaps in testimony regarding custody.” Quick’s Brief at 16
(citation omitted). Quick does not claim any “gaps” occurred while the police
had possession of the knife. Rather, he avers that it “seems implausible” that
he “robbed Mr. Lebano, and while doing so, in the middle of the encounter,
had a knife in one hand, a suitcase and duffle bag in the other, and while on
a high-speed chase, put a knife in a duffle bag where a sheath was prior to
having an accident.” Id. at 17-18. Thus, Quick apparently assumes that this
Court reviews evidentiary rulings de novo.
We do not.
As Quick acknowledges, “admissibility of evidence [is] within the sound
discretion of the trial court and will not be reversed absent a clear abuse of
discretion.” Id. at 16 (citing Commonwealth v. Chmiel, 738 A.2d 406 (Pa.
1999). Employing that standard of review, this Court may not simply
substitute its judgment for that of a trial court. Instead, an abuse of discretion
“only occurs if the trial court renders a judgment that is manifestly
unreasonable, arbitrary, or capricious; that fails to apply the law; or that is
motivated by partiality, prejudice, bias, or ill-will. [Thus,] a reasonable
judgment by the trial court is not an abuse of discretion, even if this Court
disagrees with that judgment.” Commonwealth v. Pi Delta Psi, Inc., 211
A.3d 875, 881 (Pa. Super. 2019), appeal denied, 221 A.3d 644 (Pa. 2019).
In making his evidentiary argument, Quick does not contend that the
trial court’s admission of the knife into evidence was manifestly unreasonable,
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arbitrary, or capricious; misapplied the law; or was the result of partiality,
prejudice, bias, or ill-will. Instead, he objects to the knife’s admission based
on chain of custody for the first time on appeal. This he may not do. See
generally, Pa.R.A.P. 903. As such, he has waived this basis for objection under
Rule 903.
We dismiss his evidentiary issue, because Quick has waived it.
B. No Merger of Robbery Convictions
For his second claim of error, Quick attacks the legality of his sentence.
He believes the trial court should have merged his sentences for robbery with
threat of serious bodily harm and robbery of a motor vehicle, because they
arose from the same criminal episode.
Whether the trial court has imposed an illegal sentence presents a pure
question of a law; thus, our scope of review is plenary, and our standard of
review is de novo. See Pi Delta Psi, 211 A.3d at 899-90. “If no statutory
authorization exists for a particular sentence, that sentence is illegal and . . .
must be vacated.” Commonwealth v. Stevenson, 850 A.2d 1268, 1271
(Pa. Super. 2004) (en banc).
Under that statutory test, merger occurs when “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.” Commonwealth v.
Martinez, 153 A.3d 1025, 1030 (Pa. Super. 2016) (quoting 42 Pa.C.S.A. §
9765). If two “crimes merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.” Id. To determine whether
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terroristic threats and robbery merge for purposes of sentencing, Martinez
held “We must [apply] the second part of the Section 9765 test and examine
whether all of the statutory elements of terroristic threats as charged are
subsumed by the statutory elements of robbery.” Id. at 1032.
Here, the trial court applied the statutory test and precedents of this
Court to conclude that robbery (threat of serious bodily injury) and robbery of
a motor vehicle do not merge for sentencing purposes. As the court correctly
explained, for the merger doctrine to apply:
all of the statutory elements of one of the offenses must be
included in the statutory elements of the other . . .
Commonwealth v. Wade, 33 A.3d 108, 116 (Pa. Super.
2011).
In Wade, the Superior Court addressed and rejected
a merger claim virtually identical to the claim raised by
[Quick] in this case. In Wade, the defendant was convicted
of both robbery of a motor vehicle and robbery—threat of
serious bodily injury . . . The Superior Court . . . held:
Our merger statute merely codified the [Blockburger
v. United States, 284 U.S. 299 (1932)] test and
upholds the long-standing merger doctrine relative to
greater and lesser-included offenses. Instantly,
robbery-threat of serious bodily injury and robbery of
a motor vehicle each requires proof of a fact that the
other does not. As we have previously provided,
robbery of a motor vehicle does not require that a
person be threatened with serious bodily injury and
robbery—threat of serious bodily injury does not
include the element of stealing or taking a vehicle.
Therefore, the two, robbery crimes at issue in the
present case are not the same offense under the
Blockburger test . . . [Because Section 9765] does
not violate double jeopardy and robbery of a motor
vehicle and robbery-threat of serious bodily injury are
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not greater and lesser-included offenses, [Quick’s]
claim fails.
Trial Court Opinion, 2/14/18, at 8 (quoting Wade, 33 A.3d at 120-21).
We adopt this well-reasoned opinion of the learned trial court as our
own on this issue. As we noted in Martinez, in order for crimes to merge,
Section 9765 requires that they arise from a single criminal act and all of the
statutory elements of one offense be included in the statutory elements of the
other offense. Here, although both charges arose from a single criminal act,
i.e., the theft of the car, the statutes’ elements of these two crimes are
different. Thus, Quick’s second issue is meritless.
C. Mandatory-Sentencing Provisions
As his next issue, Quick asserts the trial court “erred as a matter of law
and abused its discretion in sentencing [him] to a mandatory minimum
sentence of three hundred eleven (311) months.” Quick’s Brief at 27. Quick
raises several arguments on this issue.
First, he claims the trial court imposed mandatory sentences due to his
prior convictions, pursuant 42 Pa.C.S.A. § 9714, an unconstitutional statute
under Alleyne v. U.S., 570 U.S. 99 (2013), and its Pennsylvania progeny.
See Quick’s Brief at 19, 29. Second, Quick asserts that, because the
Commonwealth did not provide proper notice of its intent to seek the
mandatory minimums, his sentence “should be vacated.” Quick’s Brief at 32.
And third, Quick argues that the imposition of separate, mandatory-minimum
sentences for his two robbery convictions violates 42 Pa.C.S.A. § 9716
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(providing “[w]here two or more sections requiring mandatory minimum
sentences are applicable, the court shall be bound by that section requiring
the greater penalty.”)
Initially, we note that the trial court did not impose a mandatory
sentence of 311 months. Rather, the sentencing transcript establishes that
the trial court’s only mandatory-minimum sentences were for the two robbery
convictions — i.e., consecutive sentences of 10 to 20 years for each.
Section 9714(a)(1) required these 10-year, minimum sentences. That
statute provides:
Any person who is convicted in any court of this
Commonwealth of a crime of violence shall, if at the time of
the commission of the current offense the person had been
previously convicted of a crime of violence, be sentenced to
a minimum sentence of at least ten years of total
confinement, notwithstanding any other provision of this
title or other statute to the contrary. Upon a second
conviction for a crime of violence, the court shall give the
person oral and written notice of the penalties under this
section for a third conviction of a crime of violence. Failure
to provide such notice shall not render the offender ineligible
to be sentenced under paragraph (2) [(relating to sentence
of third conviction of crime of violence.)]
42 Pa.C.S.A. § 9714(a)(1).
The trial court believed that it properly applied the provisions of Section
9714. The court explained:
in December of 2008, [Quick] was convicted in New Jersey
of Aggravated Assault – Cause Bodily Injury While Fleeing
or Attempting to Elude Law Enforcement and Resisting
Arrest/Eluding. Counsel for [Quick] had the opportunity to
review the PSI report prior to the sentencing hearing. To
the best of our recollection, [Quick] did not dispute the New
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Jersey convictions or otherwise take issue with his prior
record as set forth in the report. The crimes of which
[Quick] was previously convicted in New Jersey clearly
constitute “crimes of violence” within the meaning of
Section 9714. It is equally clear that that the Robbery
crimes of which [Quick] was convicted in this case also
constitute “crimes of violence.” Given the prior and instant
convictions for crimes of violence, we properly applied the
provisions of Section 9714.
Trial Court Opinion, 2/13/18, at 10 (footnote omitted).4
The record supports the trial court’s conclusions in this regard.
The trial court, however, did not address Quick’s specific illegality of
sentence claim that he now raises on appeal, because he did not include them
in his 1925(b) statement. Even so, Quick’s challenges to the legality of his
sentence are not subject to waiver. Commonwealth v. Bowers, 25 A.3d
349, 352 (Pa. Super. 2011) (explaining a challenge to the legality of a
sentence may be raised as a matter of right, is not subject to waiver, and may
be entertained as long as the reviewing court has jurisdiction).
All of Quick’s claims regarding the implication of mandatory-
minimum sentences lack merit. First, Quick’s constitutional argument fails,
because this Court has repeatedly held that Alleyne, supra, does not apply
to prior convictions. See, e.g., Commonwealth v. Furness, 153 A.3d 397(Pa. Super. 2016). Quick misapprehends the law of this Court.
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4At the time the trial court wrote its Rule 1925(a) opinion, the sentencing
hearing had yet to be transcribed. For this reason, the trial court also found
Quick’s challenge to the discretionary aspects of his sentence to be waived.
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Second, the record belies Quick’s claim that the Commonwealth did not
provide him with proper notice of its intention to seek the mandatory-
minimum sentences. At sentencing, the Commonwealth informed the trial
court that it “gave notice Your Honor prior to trial . . . in open court actually
before Your Honor” of the Commonwealth’s “intent to seek the mandatory
minimums.” N.T., 10/17/17, at 8. Quick misapprehends the facts of this case.
Finally, Quick claims he erroneously received two, separate, mandatory-
minimum sentences. See Quick’s Brief at 32. He relies on Commonwealth
v. Baker, 72 A.3d 652 (Pa. Super. 2013), to support his claim of error. In
Baker, a convicted person challenged the trial court’s imposition of two,
mandatory-minimum sentences consecutively, resulting in a sentence of 7 to
15 years, for a single possession-with-intent-to-deliver conviction. There, the
question was “whether two mandatory minimums [could] be applied to a
single, conviction.” Baker, 72 A.3d at 660. Here, by contrast, Quick received
two, separate, mandatory-minimum sentences for two, separate convictions.
Thus, Baker is inapposite.
Quick avers, that in this case, “there was one robbery in a continuous,
single, criminal episode. Therefore, two mandatory sentences were in error
of law and abuse of discretion [sic].” Quick’s Brief at 33. Quick ignores,
however, that he was convicted of two, separate counts of robbery, which do
not merge for sentencing purposes. Although Quick committed them during
a continuous, single episode, the two crimes have unique elements.
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Therefore, Quick’s consecutive, mandatory-minimum sentences were legal
under Section 9716.
For example, we have upheld multiple, mandatory-minimum sentences
where a convicted person committed separate crimes. In Commonwealth
v. McLaughlin, 574 A.2d 610 (Pa. Super. 1990), the convicted person had
killed one person and injured three others. The trial court therefore imposed
four, mandatory-minimum sentences. On appeal, we rejected McLaughlin’s
claim that under Section 9716, “when two or more sections requiring
mandatory minimum sentences are applicable, a court must impose the
greater penalty. In upholding the sentence imposed, [we] explained this is
not a case in which two, mandatory sentences apply to a single crime, but one
in which there are several crimes (or victims) each of which calls for a
separate, mandatory sentence.” Baker, 72 A.3d at 661 (citations and
emphasis omitted).
The same is true for Quick. He committed two crimes each involving
separate, mandatory-minimum sentences; his Section 9716 claim therefore
fails. No relief is due on this issue.
D. Requested Appeal of the Discretionary Aspects of Sentence
Finally, Quick asks to appeal the discretionary aspects of his sentence.
See Quick’s Brief at 10–11.
A convicted person has no automatic right to appeal the discretionary
aspects of a sentence. See, e.g., Commonwealth v. Moury, 992 A.2d 162,
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170 (Pa. Super. 2010). This Court has therefore articulated the following,
four-part test to determine whether to consider the merits of such an appeal:
(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.A. § 9781(b).
Id. (some punctuation omitted).
Quick timely appealed, nunc pro tunc; he moved for reconsideration of
the sentence; and he included a Rule 2119(f) statement in his appellate brief
requesting that we grant discretionary review. Thus, he has satisfied the first
three prongs of the above test.
We therefore consider the fourth prong — i.e., whether he raised a
substantial question in his 2119(f) statement seeking allowance of appeal.
Such a request raises a substantial question “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 sentencing
process.” Commonwealth v. Sierra, 752 A.2d 910, 912-13 (Pa. Super.
2000).
Here, Quick’s statement does neither. It indicates no provision of the
sentencing code that the trial court supposedly violated. See Quick’s Brief at
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10-11. His statement likewise fails to indicate if or how the trial court acted
contrary to the fundamental norms of sentencing. See id.We have said an appellant “may raise a substantial question where he
receives consecutive sentences within the guideline ranges, if the case
involves circumstances where the application of the guidelines would be
clearly unreasonable, resulting in an excessive sentence; however, a bald
claim of excessiveness due to the consecutive nature of a sentence will not
raise a substantial question.” Commonwealth v. Dodge, 77 A.3d 1263,
1270 (Pa. Super. 2013) (emphasis in original). See also Commonwealth v.
Moury, 992 A.2d 162, 171–172 (Pa. Super. 2010) (“The imposition of
consecutive, rather than concurrent, sentences may raise a substantial
question in only the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the crimes and
the length of imprisonment.”).
Quick’s bald claim of excessiveness due to the trial court’s imposition of
consecutive sentences, without more, does not present a substantial question
warranting the exercise of this Court’ discretionary review. Thus, we deny his
request to appeal the discretionary aspects of his aggregate sentence.
Judgment of sentence affirmed.
Judge Bowes joins the memorandum.
Judge Strassburger files a concurring memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/20
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