Com. v. Myers, C ( 2020 )

J-S40024-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER MYERS :
:
Appellant : No. 2801 EDA 2019
Appeal from the Judgment of Sentence Entered January 3, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009678-2016
BEFORE: SHOGAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED DECEMBER 10, 2020
Appellant, Christopher Myers, appeals nunc pro tunc from the judgment
of sentence entered in the Philadelphia County Court of Common Pleas,
following his jury trial convictions for robbery, theft, and simple assault.1 We
affirm Appellant’s convictions but vacate and remand for resentencing.
The relevant facts and procedural history of this case are as follows.
On September 25, 2016, near 15th Street and Belfield
Avenue, at approximately 3:30 PM…Complainant…was on
his way home from Rite Aid when [Appellant] came up to
him and demanded money from him. …Complainant refused
to hand over his money and [Appellant] hit…Complainant on
the left side of his face with his fist and knocked him to the
ground. After…Complainant was on the ground, [Appellant]
went in Complainant’s pocket and took his cellphone and
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3921(a), and 2701(a), respectively.
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around $90 in United States currency. [Appellant] then
proceeded to kick Complainant on the left side of the face.
After [Appellant] kicked Complainant on the left side of his
face, …Complainant became unconscious. Upon regaining
consciousness, …Complainant was pulled up by his
friend…and escorted home. As soon as he arrived home, an
ambulance was called and Complainant was transported to
Einstein Hospital at around 4:00 PM.
…Complainant testified that he received an MRI while at
Einstein Hospital and was kept for observation.
…Complainant also testified…he couldn’t see out of his left
eye, his nose was fractured up to his left eye, the lower
portion of his face was fractured, and the top row of his
teeth needed to be shaved and some of his teeth were dead.
Due to Complainant’s lack of insurance, he left Einstein
around 4:00 AM on September 26, 2016 and received
further treatment from the Veteran’s hospital. At the
Veteran’s hospital, Complainant received an additional MRI
and was referred to an eye doctor and dentist for his
injuries.
(Trial Court Opinion, filed October 29, 2019, at 1-2).
On September 27, 2016, police interviewed Appellant in connection with
the incident. During the interview, Appellant told detectives that Complainant
owed him $200.00. Appellant explained that he saw Complainant walking on
15th Street and pulled over to ask Complainant for the money he owed.
Appellant stated that Complainant refused to pay, and a fight ensued, during
which Appellant punched Complainant and knocked him down. Appellant said
he then took Complainant’s wallet, saw that Complainant only had $4.00, and
threw the money and wallet back at him.
Significantly, the day after the interview, September 28, 2016,
Appellant was transported to the hospital due to a seizure. On March 1, 2017,
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Appellant filed an omnibus pre-trial motion seeking to suppress any
statements he made to the police during the interview. At a September 18,
2017 hearing on the suppression motion, Appellant claimed he told detectives
during the interview that he was lightheaded and had spots in his vision, and
that he has a history of seizures. He asserted that the detectives told him he
could receive medical care only after he completed the interview, and thus
coerced him into waiving his Miranda2 rights. Ultimately, the court denied
the suppression motion.
From September 19, 2017, to September 21, 2017, the court conducted
a jury trial, at the conclusion of which the jury convicted Appellant of robbery,
theft, and simple assault. The court sentenced Appellant on January 3, 2018,
to five (5) to ten (10) years’ incarceration for the robbery offense, followed by
concurrent terms of three (3) years’ probation for theft and two (2) years’
probation for simple assault.
Appellant filed a timely post-sentence motion for reconsideration of
sentence on January 13, 2018, which the court denied on March 14, 2018.
On June 26, 2018, Appellant timely filed a first petition pursuant to the Post
Conviction Relief Act (“PCRA”),3 seeking reinstatement of his direct appeal
rights nunc pro tunc. The PCRA court granted the petition on September 18,
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2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
3 42 Pa.C.S.A. §§ 9541-9546
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2019, and on September 26, 2019, Appellant filed a timely notice of appeal
nunc pro tunc. On September 27, 2019, the court ordered Appellant to file a
concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.
1925(b); Appellant timely complied on October 16, 2019.
Appellant raises two issues for our review:
Whether the [trial court] was in error in not granting relief
for denying Appellant’s Motion to Suppress[?]
Whether the [trial court] erred in not granting relief on the
grounds that there was insufficient evidence to support the
jury’s verdict[?]
(Appellant’s Brief at 6).
In his first issue, Appellant argues his September 27, 2016 statement
to police was not knowing, intelligent, and voluntary. Appellant maintains he
informed the detectives during the interview that he was lightheaded and had
black spots in his vision. Appellant asserts that he also told the detectives of
his history of seizures and that he had not been taking his prescribed
medication. Appellant alleges that, rather than pausing the interview to
provide medical assistance, the detectives promised he would receive medical
treatment only after finishing with the interview. As a result, Appellant
contends he was psychologically coerced into waiving his Miranda rights and
providing the statement, believing that the more he cooperated, the sooner
he would receive medical treatment. Appellant concludes this Court should
reverse the trial court’s order denying his motion to suppress, vacate the
judgment of sentence, and order a new trial. We disagree.
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We review the denial of a suppression motion as follows:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is limited to
determining whether the factual findings are supported by
the record and whether the legal conclusions drawn from
those facts are correct.
[W]e may consider only the evidence of the
prosecution and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the record
supports the findings of the suppression court, we are
bound by those facts and may reverse only if the court
erred in reaching its legal conclusions based upon the
facts.
Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en
banc) (internal citations and quotation marks omitted). “It is within the
suppression court’s sole province as factfinder to pass on the credibility of
witnesses and the weight to be given their testimony.” Commonwealth v.
Clemens, 66 A.3d 373, 378 (Pa.Super. 2013) (quoting Commonwealth v.
Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)).
Furthermore,
When determining the validity of a Miranda waiver, we
employ a two-step inquiry. We first ask whether the waiver
was voluntary in the sense of being the result of an
intentional choice on the part of a defendant who was not
subject to undue government pressure. If we conclude the
waiver was voluntary, we then ask if the defendant was
aware of the nature of the choice that he made by giving up
his Miranda rights, i.e., whether it was knowing and
intelligent.
Commonwealth v. Knox, 219 A.3d 186, 193-94 (Pa.Super. 2019), appeal
denied, ___ Pa. ___, 228 A.3d 256 (2020) (internal citations omitted).
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Instantly, regarding Appellant’s suppression motion, the trial court
reasoned:
During the suppression hearing, Detective Kenneth
Flemming testified that on September 27, 2016, at the
Northwest Detective Division, he brought [Appellant] up
from the first floor to his office on the second floor for
questioning. At around 11:20 PM, Detective Flemming and
Detective Cannon began questioning [Appellant], providing
him with his rights and asking if he was under the influence
of any drugs, alcohol, medications, or narcotics. [Appellant]
did not make any requests throughout the duration of the
interview, he made no requests for food or water, or any
request for medical attention. If [Appellant] had stopped
and made any request during the interview, Detective
Flemming testified that he would have noted it in
[Appellant]’s statement. Detective Flemming did not recall
anything indicating that [Appellant] had not been in the
right condition to give a statement, instead noting that
[Appellant] was “perfectly normal” during the questioning.
The questioning lasted from 11:20 PM through 11:46 PM, a
mere 26 minutes. At the conclusion of the interview,
[Appellant] did not ask for any medical assistance or inform
the detectives of any medical issues.
In contrast, [Appellant] testified at the suppression hearing
that uniformed police officers came to retrieve him from his
holding cell and asked if he was ready to speak to the
detectives, to which he responded, “Yes.” [Appellant]
claimed he was feeling lightheaded and seeing black spots
during his questioning. [Appellant] claimed that he
informed both detectives of his physical state and they told
him to continue his statement and he would get treatment
afterwards. [Appellant] further testified that he has
suffered from seizures since he was 9 years old and that he
had not been taking his seizure medication for about a
month prior to this interrogation due to an issue with his
medical insurance. [Appellant] explained that when he feels
a seizure coming on, he feels lightheaded, sees black spots,
and that lights begin to flash. During the interview with
detectives, [Appellant] never stated that he was having a
seizure nor did he lose consciousness during their
conversation. [Appellant] acknowledged that he signed
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each page of his written statement. However, at the
suppression hearing, he claimed that he only signed his
statement so he could receive medical treatment.
The following morning, on September 28, 2016, [Appellant]
suffered a seizure and an ambulance was requested around
10:40 AM. The Philadelphia Fire Department EMS
ambulance record indicated that [Appellant]’s status was
normal and his neurological status was also normal.
[Appellant] arrived at the Albert Einstein Medical Center at
11:02 AM. The medical records indicated that [Appellant]’s
level of consciousness was alert, his orientation was
oriented times three, affect or behavior is alert, appropriate,
calm, and cooperative, no evidence barriers to learning were
present, and that [Appellant] denied fever, chills, nausea,
vomiting, focal weakness, chest pain, shortness of breath,
altered sensation, and abdominal pain. The medical report
further noted that [Appellant] was alert and awake and was
able to provide a history.
During the suppression hearing, the trial court found
[Appellant]’s testimony incredible and the testimony of
Detective Flemming credible. The trial court specifically
found incredible that portion of [Appellant]’s testimony that
he had no memory of what happened after he was
questioned and returned to his cell. The court found this
incredible especially since [Appellant] testified in detail as
to his memory of his conversation with the detectives. The
trial court stated that it was incomprehensible how
[Appellant] could retain those details as to the statement he
provided right before he was returned to his cell, but was
unable to retain any memory after that until he awoke in
the hospital. The trial court also found it incredible that
[Appellant] would experience symptoms of an onset of a
seizure and that the seizure would not occur until 12 hours
later.
The trial court determined that [Appellant]’s waiver was
voluntary, knowing, and intelligent based on [Appellant]’s
…statement which failed to suggest that [Appellant] was not
of clear mind and unable to understand the questions. The
trial court also noted that [Appellant]’s testimony at the
suppression hearing was that when he was taken to speak
with the detectives, he was asked if he was ready to speak
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with them, to which he responded, “Yes,” further proving
that [Appellant]’s waiver was voluntary, knowing, and
intelligent.
(Trial Court Opinion at 7-9) (internal footnote omitted). We will not disrupt
the court’s credibility determination in favor of Detective Flemming and
against Appellant. See Clemens, supra. The testimony presented at the
suppression hearing shows Appellant’s waiver of his Miranda rights was
knowing, intelligent, and voluntary. See Knox, supra. Thus, the court did
not err in denying Appellant’s suppression motion. See Williams, supra.In his second issue, Appellant argues the evidence was insufficient to
support his convictions. Regarding the robbery and theft convictions,
Appellant contends the Commonwealth failed to show that any evidence was
found on Appellant’s person, despite Complainant’s testimony that Appellant
had taken his cellphone and $90.00. Concerning the simple assault
conviction, Appellant maintains Complainant’s testimony concerning the
severity of the injury to his eye contradicted medical reports. Appellant also
claims the Commonwealth failed to provide any evidence to support its
contention that Appellant initiated the altercation. Rather, Appellant insists it
was a “mutual fight.” Appellant concludes the evidence was insufficient to
support his convictions, and this Court should grant relief.4 We disagree.
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4 Throughout his argument, Appellant also challenges Complainant’s
credibility, which implicates the weight of the evidence rather than the
sufficiency of the evidence. See Commonwealth v. Price, 616 A.2d 681,
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When examining a challenge to the sufficiency of evidence, our standard
of review is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).
The Crimes Code defines the offenses of robbery, theft, and simple
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683 (Pa.Super. 1992) (explaining sufficiency challenge asks whether evidence
exists on record to support conviction, whereas argument that witness’s
account is not credible goes to weight). Appellant, however, did not raise a
weight of the evidence claim in his post-sentence motion or at sentencing.
Therefore, to the extent Appellant’s argument raises a weight of the evidence
claim, it is waived. See Pa.R.Crim.P. 607(A)(1)-(3) (stating challenge to
weight of evidence must be raised with trial court in oral or written motion
before sentencing or in post-sentence motion).
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assault, in pertinent part, as follows:
§ 3701. Robbery
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
* * *
(ii) threatens another with or intentionally puts him
in fear of immediate serious bodily injury[.]
18 Pa.C.S.A. § 3701(a)(1)(ii).
§ 3921. Theft by unlawful taking or disposition
(a) Movable property.―A person is guilty of theft if he
unlawfully takes, or exercises unlawful control over,
movable property of another with intent to deprive him
thereof.
18 Pa.C.S.A. § 3921(a).
§ 2701. Simple Assault
(a) Offense defined.—Except as provided under section
2702 (relating to aggravated assault), a person is guilty of
assault if he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a
deadly weapon;
(3) attempts by physical menace to put another in fear
of imminent serious bodily injury[.]
18 Pa.C.S.A § 2701(a)(1)-(3).
Instantly, the court addressed Appellant’s challenge to the sufficiency of
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the evidence as it relates to his robbery and theft convictions as follows:
…[Appellant] demanded money from…Complainant
and…Complainant refused. Complainant testified
[Appellant] then proceeded to hit him on the left side of his
face with his fist, knocking Complainant to the ground, took
Complainant’s money and cell phone, and then kicked him
in the face, causing him to lose consciousness. These facts
are more than sufficient evidence to support the robbery
and theft convictions beyond a reasonable doubt.
[Appellant] unlawfully took Complainant’s money and
cellphone by intentionally putting Complainant in fear of
immediate serious bodily injury. Further, the taking was
done with the intent to permanently deprive Complainant of
his property. It is entirely believable that [Appellant]’s
violent actions would reasonably place…Complainant in fear
of immediate serious bodily injury, as the head is a fragile
and crucial part of the body. The testimony that
Complainant provided that [Appellant] kicked him, while he
was on the ground, in this fragile and crucial part of the body
certainly supports a threat of serious bodily injury during
the course of the theft.
(Trial Court Opinion at 10-11). Concerning the simple assault conviction, the
court reasoned:
…[T]he jury clearly found…Complainant’s testimony as to his
injuries to be credible. …Complainant testified that he
couldn’t see out of his left eye, the lower left side of his face
was fractured, and his nose was fractured up to his left eye,
and the top row of his teeth needed to be shaved and some
of his teeth were dead. Complainant further testified that
he needed a root canal and continues to receive treatment
for the injuries he sustained from [Appellant]’s beating.
Although circumstantial, [Complainant]’s injuries were
consistent with what would be expected of a punch and kick
to the face. Based on the injuries Complainant sustained, it
is evident that [Appellant] intentionally caused bodily injury
to…Complainant. Therefore, the evidence was sufficient to
support [Appellant]’s simple assault conviction as a
misdemeanor in the second degree.
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(Trial Court Opinion at 11-12) (internal citation omitted).5 Viewed in the light
most favorable to the Commonwealth as verdict-winner, we agree with the
court’s analysis that the evidence was sufficient to convict Appellant of
robbery, theft, and simple assault. See 18 Pa.C.S.A. §§ 3701(a)(1)(ii);
3921(a); 2701(a); Hansley, supra. Therefore, we affirm Appellant’s
convictions.
Nevertheless, we observe that Appellant previously argued in his post-
sentence motion and Rule 1925(b) statement, and the trial court and
Commonwealth agree, that Appellant’s conviction for theft should have
merged with robbery for sentencing purposes. This Court has explained:
Whether crimes merge for sentencing purposes implicates
the legality of the sentence, which this Court can raise sua
sponte. Therefore, our standard of review is de novo and
our scope of review is plenary. Merger of sentences is
governed generally by Section 9765 of the Sentencing Code,
which provides:
§ 9765. Merger of sentences
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5 In the argument section of his brief, Appellant asserts some claims that the
trial court opinion did not address, including: (1) the investigating officer
testified that police did not recover Complainant’s belongings from Appellant;
(2) the Commonwealth produced no evidence showing the amount of cash
Complainant had before the incident; (3) Complainant’s medical records state
that Complainant had no vision loss; and (4) the Commonwealth produced no
evidence to show that Appellant initiated the altercation. Appellant failed to
specify these particular points in his Rule 1925(b) statement, so they are
waived. See Hansley, supra at 415 (explaining Rule 1925(b) statement
must be specific enough for trial court to identify and address issues raised on
appeal; concise statement “which is too vague to allow the court to identify
the issues raised on appeal is the functional equivalent of no concise statement
at all”; thus, if concise statement is too vague, court may find waiver).
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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.A. § 9765. [T]he language of the legislature is
clear. The only way two crimes merge for sentencing is if
all elements of the lesser offense are included within the
greater offense. …
* * *
To determine whether offenses are greater and lesser-
included offenses, we compare the elements of the
offenses. If the elements of the lesser offense are all
included within the elements of the greater offense
and the greater offense has at least one additional
element, which is different, then the sentences
merge. If both crimes require proof of at least one
element that the other does not, then the sentences
do not merge.
Commonwealth v. Watson, 228 A.3d 928, 941 (Pa.Super. 2020) (internal
citations and quotation marks omitted).
This Court has historically found that theft and robbery merge for
sentencing purposes. Commonwealth v. Turner, 402 A.2d 542, 544
(Pa.Super. 1979) (explaining that by definition, robbery is committed “in the
course of committing a theft”; therefore, robbery necessarily involves theft,
and offenses merge for sentencing purposes). Although we have not located
a definitive, published decision that addresses the propriety of merging theft
and robbery convictions since the adoption of Section 9765 (effective February
7, 2003), recent unpublished decisions from this Court have continued to hold
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that robbery and theft convictions merge for sentencing purposes. See, e.g.,
Commonwealth v. Rouse, 237 A.3d 493 (Pa.Super. 2020) (unpublished
memorandum) (holding appellant’s robbery with threat of serious bodily injury
conviction merged with his theft by unlawful taking conviction for sentencing
purposes; vacating and remanding for resentencing).6
Instantly, Appellant’s robbery and theft offenses arose from a single
act—Appellant punching Complainant and taking his cellphone and money.
During sentencing, however, the court imposed separate sentences for these
crimes. As both convictions arose from the same criminal act, and the
elements of theft are subsumed in the robbery offense as charged, theft
constitutes a lesser-included offense of robbery. See Watson, supra.
Consequently, Appellant’s robbery and theft convictions should have merged
for sentencing purposes. Id.; 42 Pa.C.S.A. § 9765. Accordingly, we affirm
Appellant’s convictions but vacate the judgment of sentence and remand for
resentencing. See Commonwealth v. Thur, 906 A.2d 552 (Pa.Super.
2006), appeal denied, 596 Pa. 745, 946 A.2d 687 (2008) (stating: “If our
disposition upsets the overall sentencing scheme of the trial court, we must
remand so that the court can restructure its sentence plan”).
Convictions affirmed. Judgment of sentence vacated. Case remanded
for resentencing. Jurisdiction relinquished.
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6 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decisions
of Superior Court filed after May 1, 2019, may be cited for persuasive value).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2020
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