Com. v. Dow, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHABAZZ R. DOW :
:
Appellant : No. 359 EDA 2019
Appeal from the Judgment of Sentence Entered September 28, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011039-2017
BEFORE: LAZARUS, J., KING, J., and COLINS, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 25, 2022
Shabazz R. Dow appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after entering a guilty plea to
one count each of robbery,1 burglary,2 attempted involuntary deviate sexual
intercourse (IDSI),3 theft by unlawful taking,4 unlawful restraint,5 indecent
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 3701(a)(1)(i).
2 18 Pa.C.S.A. § 3502(a)(1)(i).
3 18 Pa.C.S.A. § 901(a)(1).
4 18 Pa.C.S.A. § 3921(a).
5 18 Pa.C.S.A. § 2902(a)(1).
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exposure,6 terroristic threats,7 indecent assault,8 and corruption of minors.9
After careful review, we vacate the judgment of sentence, and remand for a
new sentencing hearing in accordance with the dictates of this memorandum.
At the guilty plea hearing, the Commonwealth stated the factual history,
to which Dow agreed, which we now summarize.10 On August 9, 2017, at
approximately 9:30 p.m., the victim and her two young children, E.R., a nine-
year-old female, and A.R., a seven-year-old female, were at their home in
Philadelphia. The victim noticed an unknown black male, later identified as
Dow, enter the home through the front door.
Dow ran towards the victim, placed a towel over her face, grabbed her
by the head, and threw her to the ground. Dow then told the victim “Shut up,
bitch, I will kill you.” N.T. Guilty Plea Hearing, 6/22/18, at 7. For the next
five hours, Dow remained in the victim’s home. Throughout the event, Dow
frequently commented on the victim’s breasts, reminded her that he had a
gun in his backpack, and would rub himself against the victim’s body while
touching her buttocks. He also demanded that the victim hug and kiss him.
____________________________________________
6 18 Pa.C.S.A. § 3127(a).
7 18 Pa.C.S.A. § 2706(a)(1).
8 18 Pa.C.S.A. § 3126(a)(1).
9 18 Pa.C.S.A. § 6301(a)(1)(i).
10 See N.T. Guilty Plea Hearing, 6/22/18, at 7-12.
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After throwing the victim to the ground, Dow pulled the victim up by her
hair, and told her to turn off the lights in the house. The victim asked what
Dow was going to do to her, and he said, “Don’t worry I’m not going to rape
you.” Id. at 8. However, shortly thereafter, Dow pulled out his penis and
told the victim to “Put your mouth on that.” Id. The victim told Dow that she
did not want to perform oral sex on him, and Dow put his penis back in his
pants and told the victim to take her clothes off. The victim complied, and
Dow put the victim’s clothes into a backpack.
Dow began asking where the victim’s husband was and when he would
be home. Dow then demanded the victim’s wallet, debit card, and money.
Additionally, Dow asked how much money was in the victim’s bank account
and directed her to log into her bank account. Dow then had the victim call
her credit card company and claim that she was stranded and needed cash,
as well as submit a request that the credit card be approved for cash
withdrawals. Afterwards, Dow smashed all the remaining phones in the
house.
Dow forced the victim up the stairs while asking where she kept the
money. Once upstairs, Dow ordered the victim to take a shower and,
specifically, to wash her hair. After she had showered, Dow instructed the
victim to begin cleaning the home and wipe down any surfaces that Dow had
touched. While Dow followed the victim around the home, he located a cash
box, which he subsequently broke open and took approximately $1,000.00.
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At some point, Dow asked the victim whether she planned to call the
police when he left. The victim responded that she just wanted to go upstairs
and see her children. Dow told the victim to go upstairs and be quiet, and
eventually Dow left the home. As Dow left, he took the victim’s 2016 Kia
Sorrento, approximately $1,300.00 in cash, multiple debit cards, the victim’s
wallet, her iPhone, and Mac computer.
Eventually, the police were called, and officers pursued Dow in a vehicle
chase and, subsequently, on foot. Dow was arrested shortly thereafter and,
during his statement to police, he confessed to the above-described events.
Dow also volunteered that he repeatedly asked the victim, “Why did you leave
your fucking door unlocked? Do you know w[ha]t people do to little girls?”
Id. at 11.
Dow was charged, inter alia, with the above-mentioned offenses.11 On
June 22, 2018, Dow entered into a hybrid guilty plea, wherein he agreed to
plead guilty to the above-mentioned offenses, and the remaining offenses
would be nolle prossed. There was no agreement on sentencing. On
September 28, 2018, the trial court sentenced Dow to a period of 10 to 20
years in prison for his conviction of robbery, and a consecutive period of 10 to
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11 Dow was also charged with one count each of criminal trespass, 18
Pa.C.S.A. § 3503(a)(1)(ii), receiving stolen property, id. at § 3925(a), simple
assault, id. at § 2701(a), recklessly endangering another person, id. at §
2705, false imprisonment, id. at § 2903(a), harassment, id. at § 2709(a)(1),
and criminal solicitation – IDSI forcible compulsion, id. at § 902(a).
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20 years in prison for his conviction of attempted IDSI. At his conviction for
burglary, the trial court sentenced Dow to a consecutive period of 10 to 20
years of probation. The trial court imposed no further penalty on Dow’s
remaining convictions. Dow was sentenced in the aggregate to a period of 20
to 40 years in prison, followed by 10 to 20 years of probation. The trial court
also determined that Dow was required to register as a Tier III offender under
Pennsylvania’s Sex Offender Registration and Notification Act. See 42
Pa.C.S.A. §§ 9799.10-9799.41.
On October 1, 2018, Dow filed a post-sentence motion seeking
reconsideration of his sentence, in which he claimed that his sentence was
manifestly excessive, and the trial court erred by failing to comply with 42
Pa.C.S.A. § 9721(b)’s requirement that it state adequate reasons, on the
record, for imposing a sentence above the guidelines. On January 29, 2019,
the post-sentence motion was denied by operation of law. Dow filed a timely
notice of appeal. The trial court ordered Dow to file a concise statement
pursuant to Pa.R.A.P. 1925(b). Dow’s counsel filed Rule 1925(b) extension
requests, in which he alerted the trial court that the sentencing hearing and
guilty plea hearing transcripts had not been transcribed.
At some point, appellate counsel was notified by the court reporters that
no notes of testimony for the sentencing hearing existed. Then appellate
counsel filed, with the trial court, a Statement in Absence of Transcript
pursuant to Pa.R.A.P. 1923 (where no transcript of proceedings available,
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appellant may prepare statement of proceedings from best available means,
including his recollection).
According to Dow, the disc containing the sentencing hearing transcript
was unreadable and no alternative copy of the transcript existed. Dow’s Rule
1923 statement includes the following:
In this matter, [c]ounsel timely filed an order for necessary notes
of testimony when the appeal was filed. Counsel received the
notes of testimony for [Dow’s] guilty plea (which was tendered on
June 22, 2018), but never received the notes of testimony for the
[] sentencing [hearing] (held on September 28, 2018). Upon
inquiry, counsel was informed that the court reporter responsible
for the sentencing [hearing] . . . was no longer employed by the
Court Reporter’s Office, but that another court reporter . . . would
be transcribing [the sentencing hearing]. After further inquiries,
and after some delay occasioned by the disruption in the First
Judicial District’s email system, counsel was informed that the disc
containing the notes of testimony for [Dow]’s sentencing was
unreadable and that the notes are therefore unable to be
transcribed.
Statement in Absence of Transcript Pursuant to Pa.R.A.P. 1923, 7/22/19, at
1-2 (unpaginated). Counsel also represented that he contacted Dow’s trial
counsel, reviewed various memos and documents filed with the trial court,
and attached a proposed statement of evidence to the Rule 1923 statement.
Id. at 2 (unpaginated); see also id., at 3-4 (unpaginated). In the proposed
statement of evidence, appellate counsel included a report, authored by May
Archer,12 that had been accepted by the trial court at Dow’s sentencing
____________________________________________
12 May Archer is a social worker employed with the public defender’s office.
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hearing, which contained Dow’s social history, childhood life, mental health
diagnoses, substance abuse, and his family history. Id. at 3-4, 8-14.
In its response, the Commonwealth indicated that the Commonwealth
was similarly unable to locate a copy of the sentencing transcript. See
Commonwealth’s Response, 8/2/19, at 2. Additionally, the Commonwealth
indicated that the assistant district attorney who was present at Dow’s
sentencing hearing no longer worked for the office. Id. Further, although the
Commonwealth did not object, it was “unable to verify the accuracy of [Dow]’s
statement of evidence” and, thus, relied upon the trial court’s recollection and
notes of the sentencing hearing in addition to Dow’s PSI. Id.
Shortly thereafter, Dow filed a supplemental Rule 1923 motion, in which
the Commonwealth joined, whereby the parties requested to supplement the
existing Rule 1923 statement with the offense gravity scores (OGS) for
attempted IDSI, robbery, and burglary. On January 13, 2021, the trial court
granted Dow’s supplemental Rule 1923 motion and determined that Dow had
an OGS of 11 for attempted IDSI, 10 for robbery, and 10 for burglary. See
Order, 1/13/21. In the same order, the trial court clarified that Dow had pled
guilty to a single count of robbery under section 3701(a)(1)(ii)-(iii). See
Order, 1/13/21.
On appeal, Dow’s appellate counsel became aware that the guilty plea
transcript was still absent from the record before this Court, and on July 31,
2021, filed an Application for Correction of the Original Record, in which he
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requested permission to supplement the certified record with the transcripts.
See Application for Correction of the Original Record, 7/31/21, at ¶ 2.13 On
August 11, 2021, this Court granted the application. Subsequently, on
October 10, 2021, Dow’s appellate counsel filed a second Application for
Correction of the Original Record, in which he requested to supplement the
certified record with Dow’s PSI, mental health evaluation, and prior record
score. See Application for Correction of the Original Record, 10/8/21, at ¶¶2-
3. On October 22, 2021, this Court granted Dow’s application. Both Dow and
the trial court have complied with Pa.R.A.P. 1925.
On appeal, Dow raises the following issues for our review:
[1.] Did not the court err and abuse its discretion by sentencing
[Dow] to above-guideline sentences while failing to state its
reasons for imposing such sentences?
[2.] Did not the court err by imposing separate sentences of guilt
with no further penalty for the charges of theft by unlawful taking,
unlawful restraint, indecent exposure, terroristic threats, indecent
assault[,] and corruption of minors where, pursuant to 18
Pa.C.S.[A.] § 3502(d), a defendant sentenced for a burglary
conviction may not be separately sentenced for offenses “which it
was his intent to commit after the burglarious entry?”
[3.] Did not the court err by imposing a separate sentence of guilt
with no further penalty for the charge of theft by unlawful taking,
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13 We observe that, in this filing, appellate counsel attached the guilty plea
hearing transcript, and a separate hearing transcript dated December 19,
2019, which is not the sentencing hearing. See id. at Exhibit A-B. Our review
of the December 19, 2019 hearing, indicates that it was conducted by the trial
court in order to state that, in sentencing Dow, it had considered his PSI,
mental health evaluation, and prior record score. See N.T. Hearing,
12/19/19, at 3.
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as this offense should have merged as a lesser-included offense
for sentencing purposes with the charge of robbery?
Brief for Appellant, at 4.
In his first claim, Dow contends that his own Rule 1923 statement is
insufficient and an inadequate substitute for the missing sentencing transcript,
because, pursuant to section 9721(b), the Rule 1923 statement cannot meet
the requirements that a trial court shall place its reasons on the record, in
open court, for deviating from the sentencing guidelines. Brief for Appellant,
at 13-14. In particular, Dow argues that the trial court deviated upwards from
the sentencing guidelines and that, without a sentencing transcript, it is
impossible for this Court to adequately review the trial court’s rationale for its
deviation. Id. at 14-15. The Commonwealth, in its brief, concedes that the
existing record does not reveal any reasons that the trial court relied upon in
its deviation from the sentencing guidelines. See Commonwealth’s Brief, at
8-9. Additionally, both Dow and the Commonwealth request that this Court
vacate Dow’s judgment of sentence and remand for the trial court to conduct
a new sentencing hearing at which it can place its reasons on the record. Brief
for Appellant, at 15; see also Commonwealth’s Brief, at 8-9.
Initially, we must determine whether the absent sentencing transcript
impedes our review and, if so, whether the subsequent Rule 1923 statement
cures this defect. We acknowledge that “[t]he burden of obtaining transcripts
from the proceedings falls squarely on the appellant.” See Commonwealth
v. Harvey, 32 A.3d 717, 721 (Pa. Super. 2011) (citing Pa.R.A.P. 1911(a)).
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However, when the situation arises where there is no transcript
available, at no fault of the appellant, Rule 1923 provides:
If no report of the evidence or proceedings at a hearing or trial
was made, or if a transcript is unavailable, the appellant may
prepare a statement of the evidence or proceedings from the best
available means, including his recollection. The statement shall
be served on the appellee, who may serve objections or propose
amendments thereto within ten days after service. Thereupon[,]
the statement and any objections or proposed amendments shall
be submitted to the lower court for settlement and approval and
as settled and approved shall be included by the clerk of the lower
court in the record on appeal.
Pa.R.A.P. 1923 (emphasis added). “The theory that underlies Rule 1923 is
that a verbatim transcript of proceedings is not necessarily a condition
precedent to meaningful appellate review, so long as the appellate court has
an ‘equivalent picture’ of what happened.” Harvey, 32 A.3d at 721.
“Meaningful review does not require, per se, a complete [] transcript.”
Commonwealth v. Burrows, 550 A.2d 787 (Pa. Super. 1988); see also
Commonwealth v. Lesko, 15 A.3d 345, 410-11 (Pa. 2011) (“[T]he absence
of notes does not generate some instantaneous, meritorious claim for relief.”).
Additionally, “Rule 1923 does not contemplate that appellate counsel must
single-handedly reconstruct the record.” Burrows, 550 A.2d at 789.
Instantly, as discussed above, Dow filed a Rule 1923 statement. See
Rule 1923 Statement, 7/22/19, at 1-4 (unpaginated). On August 8, 2019,
the Commonwealth filed its response, in which it did not contest the factual
statement in Dow’s Rule 1923 statement. See Commonwealth’s Response,
8/8/19, at 1-2. In addition, the Commonwealth likewise stated that it was
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unable to locate a copy of the sentencing transcript and deferred to the trial
court’s recollection of the sentencing hearing. Id.
On September 25, 2020, Dow filed a motion to supplement his Rule
1923 statement, in which the Commonwealth joined. See Motion to
Supplement, 9/25/20, at 1-2 (unpaginated). The parties agreed to the
following OGS for Dow’s convictions: robbery – 10, burglary – 10, attempted
IDSI – 11. Id. On January 13, 2021, the trial court issued an order, in which
it accepted Dow’s Rule 1923 statement and his supplemental Rule 1923
statement. See Order, 1/13/21, at 1.
Additionally, both Dow and the Commonwealth agreed that the
sentencing guideline ranges for attempted IDSI were 72 – 90 months
(standard range), and 102 months (top end of the aggravated range), and for
both robbery and burglary 60 – 71 months (standard range) and 83 months
(top end of the aggravated range). See Motion to Supplement, 9/25/20, at
1-2; Brief for Appellant, at 11, 13; Commonwealth’s Brief, at 8-9. However,
in its opinion, the trial court asserts that, “[Dow] had a prior record [score] of
five (5) with a guideline sentence of up to eighty-nine (89) years of
incarceration.” Trial Court Opinion, 3/11/21, at 8. The trial court further
stated that Dow’s sentence was “ultimately, . . . mitigated below the
guidelines.” Id. (emphasis added).
Despite the best efforts of the parties and the trial court, we are
constrained to conclude that the record before us does not contain any reasons
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for the trial court’s deviations from the guidelines. See 42 Pa.C.S.A. §
9721(b); see also Commonwealth v. Hill, 66 A.3d 365, 370-72 (Pa. Super.
2013) (in deviating from sentencing guidelines, trial court must demonstrate
that it understood suggested ranges for sentencing guidelines and provide
statement of reasons pursuant to section 4721(b)); see also
Commonwealth v. Beatty, 227 A.3d 1277, 1289 (Pa. Super. 2020) (42
Pa.C.S.A. § 9721(b) does not require sentencing court to evoke “magic words”
but sentencing court must demonstrate understanding of sentencing
guidelines). We further conclude that, through no fault of Dow’s, the
sentencing transcript is unavailable, this defect cannot be cured by the Rule
1923 statement and its supplement, and Dow’s discretionary aspects of
sentencing claim is wholly unreviewable on appeal. We, therefore, vacate
Dow’s judgment of sentence and remand for a new sentencing hearing, at
which the trial court shall place its reasons for Dow’s sentence on the record.14
____________________________________________
14 Moreover, we note that, as highlighted above, there is a discrepancy as to
the correct guideline ranges of Dow’s sentences, which the trial court shall
rectify upon remand. Indeed, our review of the record reveals that the 89-
year guideline, referenced by the trial court, appears to be the maximum
possible sentence if Dow had been sentenced to consecutive statutory
maximum sentences on each count. See N.T. Guilty Plea Hearing, 6/22/18,
at 6 (trial court informed Dow possible statutory maximum sentence 89 years
and $120,000.00); see also Written Guilty Plea Colloquy, 6/22/18, at 1
(outlining Dow’s possible statutory maximum sentences of 89 years and
$120,000.00). This discrepancy further supports the need to remand this
case, and direct the trial court to accurately state the applicable sentencing
guidelines at the new sentencing hearing. See Hill, supra; Beatty, supra.
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Nevertheless, our review does not end there. Dow has raised two
additional claims, in which Dow asserts that various offenses should have
merged for sentencing purposes and that the trial court sentenced him illegally
by imposing no further penalty. See Brief for Appellant, at 15, 19.
In his first merger claim, Dow contends that his convictions for theft by
unlawful taking, unlawful restraint, indecent exposure, terroristic threats,
indecent assault, and corruption of minors, should have merged, for
sentencing purposes, with his burglary conviction pursuant to 18 Pa.C.S.A. §
3502(d), pertaining to the multiple convictions after burglarious entry. Brief
for Appellant, at 15-19.
Our standard of review is well-settled. “A claim that crimes should have
merged for sentencing purposes raises a challenge to the legality of the
sentence. Therefore, our standard of review is de novo and our scope of
review is plenary.” Commonwealth v. Quintua, 56 A.3d 399, 400 (Pa.
Super. 2012). Merger of sentences is generally governed by section 9765 of
the Sentencing Code, which provides:
§ 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 defendant only on the higher graded offense.
42 Pa.C.S.A. § 9765. Further, regarding burglary, the Crimes Code provides
that “[a] person may not be sentenced both for burglary and for the offense
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which it was his intent to commit after the burglarious entry or for an attempt
to commit that offense, unless the additional offense constitutes a felony of
the first or second degree.” 18 Pa.C.S.A. § 3502(d).
Regarding his first claim, burglary is defined, in relevant part, by the
Crimes Code:
§ 3502. Burglary
(a) Offense defined.--A person commits the offense of burglary
if, with the intent to commit a crime therein, the person:
(1)(i) enters a building or occupied structure, or separately
secured or occupied portion thereof, that is adapted for
overnight accommodations in which at the time of the offense
any person is present and the person commits, attempts or
threatens to commit a bodily injury crime therein[.]
18 Pa.C.S.A. § 3502(a).15
Unfortunately, due to the above-described discrepancies in the record,
we cannot accurately determine whether the trial court made any specific
findings, regarding burglary, at Dow’s sentencing hearing.16 We acknowledge
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15 Initially, we observe that Dow does not assert that the statutory elements
of indecent assault, indecent exposure, terroristic threats, theft by unlawful
taking, corruption of minors, and unlawful restraint merge with the statutory
elements of burglary and, accordingly, we do not engage in that analysis.
16 We acknowledge that the trial court states, in its opinion, that it was Dow’s
intent to commit theft by unlawful taking and that, accordingly, his sentence
for that offense should be vacated. See Trial Court Opinion, 3/11/18, at 5.
However, the Commonwealth expressly contested this determination and
claims that it was clearly evidenced that Dow’s intent was to commit a
robbery. See Commonwealth’s Brief, at 10. We can find no support for either
of these conclusions in the record before us, due in large part to the facts that
(Footnote Continued Next Page)
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that the burglary statute prohibits separate sentences “unless the additional
offense constitutes a felony of the first or second degree.” See 18 Pa.C.S.A.
§ 3502(d). However, because the record in this case is deficient and prevents
adequate review of the trial court’s determinations at sentencing, we decline
to determine which, if any, of the above-mentioned offenses are subject to 18
Pa.C.S.A. § 3502(d). Rather, upon remand, we direct the trial court to
determine, on the record, which, if any, of Dow’s convictions were the object
of his burglarious entry.
Regarding Dow’s second merger claim, Dow argues that his convictions
of theft by unlawful taking and robbery should have merged for sentencing
purposes because theft by unlawful taking is a lesser included offense of
robbery, pursuant to section 9765. Id. at 19.
Robbery is defined, in relevant parts, by the Crimes Code as follows:
§ 3701. Robbery
(a) Offense defined.--
(1) A person is guilty of robbery if, in the course of committing
a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear
of immediate serious bodily injury;
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the trial court made no factual findings in this regard at the guilty plea hearing
and the sentencing transcript is unavailable. See N.T. Guilty Plea Hearing,
6/22/18, 1-15.
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(iii) commits or threatens immediately to commit any felony
of the first or second degree
* * *
(2) An act shall be deemed “in the course of committing a theft”
if it occurs in an attempt to commit theft or in flight after the
attempt or commission.
18 Pa.C.S.A. §§ 3701(1), (2).
The Crimes Code defines theft by unlawful taking, in relevant part, as
follows: “(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.” Id. at § 3921(a).
Based upon record before this Court, and in light of our disposition, we
similarly decline to address this merger claim. Initially, the record reflects
that Dow was charged with, and pled guilty to, robbery under subsection
(a)(1)(i). See Criminal Information, 1/10/18, at 1, 4 (unpaginated); N.T.
Guilty Plea Hearing, 6/22/18, at 4-6, 13 (Dow pled guilty to robbery as
charged); Trial Disposition and Dismissal Form, 6/22/18, at 1; see generally
Order of Sentence, 9/28/18.
However, Dow’s own supplement to his Rule 1923 statement indicates
that Dow was incorrectly charged under subsection (a)(1)(i). See Motion to
Supplement, 9/25/20, at 2 (“[I]t appears [Dow] pled to robbery under 18
Pa.C.S.A. § 3701(a)(1)(ii) and [id. at] (a)(1)(iii) . . . [a]ccordingly it is
requested that the [Rule 1923 statement] be supplemented with this
information, and that the record be clarified to reflect the proper sections of
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the charge of robbery.”) (emphasis added). Additionally, both the
Commonwealth and trial court agreed with Dow’s Rule 1923 statement. See
id. at 1 (wherein Commonwealth agreed with motion to supplement); see
also Order, 1/13/21, at 1 (“[T]o the extent that the record anywhere indicates
otherwise (including, specifically in the sentencing order for this case), it is
clarified that [Dow] was charged with the offense of Robbery under 18
Pa.C.S.A. § 3701(a)(1)(ii) and § 3701(a)(1)(iii), and pled guilty to that offense
under those sections.”).
At the outset, we observe that the trial court lacked jurisdiction to
amend the robbery subsection within the sentencing order. See 42 Pa.C.S.A.
§ 5505 (“Except as otherwise provided or prescribed by law, a court upon
notice to the parties may modify or rescind any order within 30 days after its
entry, notwithstanding the prior termination of any term of court, if no appeal
from such order has been taken or allowed.”) (emphasis added); see
also Commonwealth v. Quinlan, 639 A.2d 1235, 1238 (Pa. Super. 1994)
(generally, trial courts lack jurisdiction to modify judgment of sentence once
appeal is taken); Cf. Commonwealth v. Klein, 781 A.2d 1133, 1135-36 (Pa.
2001) (trial court could amend order of sentence while appeal pending, where
patent error occurred and sentencing transcript clearly reflected patent error).
Instantly, we observe that the trial court, in its January 13, 2021, order,
stated that “to the extent that the record anywhere indicates otherwise
(including, specifically in the sentencing order for this case), it is
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clarified that [Dow] was charged with the offense of Robbery under 18
Pa.C.S.A. § 3701(a)(1)(ii) and § 3701(a)(1)(iii), and pled guilty to that offense
under those sections.” Order, 1/13/21, at 1 (emphasis added). However,
there is no sentencing transcript for us to review regarding the subsections of
the robbery offense under which Dow pled guilty. Rather, the guilty plea
transcript indicates that Dow pled guilty to a single count of robbery, as
charged. See N.T. Guilty Plea Hearing, 6/22/18, at 4-6, 13. Additionally,
our review of the criminal information, order of sentence, and trial disposition
form reveal that Dow was charged with robbery under subsection (a)(1)(i).
See Criminal Information, 1/10/18, at 1, 4 (unpaginated); Trial Disposition
and Dismissal Form, 6/22/18, at 1; Order of Sentence, 9/28,18. Accordingly,
we discern no patent error and, thus, we are constrained to determine that
the trial court lacked jurisdiction to amend the sentencing order after Dow had
filed his timely notice of appeal. See 42 Pa.C.S.A. § 5505; Quinlan, supra.Nevertheless, in light of our disposition, the trial court may, upon
remand, correct the alleged deficiency in Dow’s robbery conviction. However,
we emphasize, that the record reveals Dow pled guilty to a single count of
robbery, not two. See Criminal Information, 1/10/18, at 1, 4 (unpaginated);
N.T. Guilty Plea Hearing, 6/22/18, at 4-6, 13; Trial Disposition and Dismissal
Form, 6/22/18, at 1; Order of Sentence, 9/28/18, at 1; see also Motion to
Supplement, 9/25/20, at 2 (wherein the parties agreed that Dow pled guilty
to one count of robbery, albeit under wrong subsubsection). Therefore, we
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caution the trial court that subsubsections (a)(1)(ii) and (iii) constitute two
separate counts of robbery.
Accordingly, because Dow only pled guilty to a single count of robbery,
and there is a conflict as to which subsection Dow pled guilty under, we decline
to engage in this merger analysis. Therefore, upon remand, we direct the
parties and the trial court to correct this error, if any, so that the record clearly
reflects the correct subsection(s) and/or counts of robbery. Moreover, upon
remand, the parties and the trial court shall fully develop the record with
regard to which charges, if any, merge with the corrected robbery subsection.
In summary, we vacate Dow’s judgment of sentence, and we remand
for a new sentencing hearing at which the trial court shall determine which, if
any, of Dow’s convictions were the intent of his burglarious entry pursuant to
18 Pa.C.S.A. § 3502(d). Additionally, the parties and the trial court shall
determine which subsection of robbery Dow pled guilty to, and, if necessary,
shall amend the single robbery subsection. Furthermore, the parties and the
trial court shall develop the record with regard to which offenses, if any, merge
with the corrected robbery subsection. Finally, the trial court shall place upon
the record its reasons for deviating from the sentencing guidelines in
accordance with 42 Pa.C.S.A. § 9721(b).
Judgment of sentence vacated. Case remanded for new sentencing
hearing in accordance with dictates of this memorandum. Jurisdiction
relinquished.
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J-S36005-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2022
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