Com. v. Martinez, L.

J-S76035-16
2016 Pa. Super. 309
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LUCIANO MARTINEZ
Appellant No. 2118 EDA 2015
Appeal from the Judgment of Sentence June 29, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009700-2014
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED DECEMBER 29, 2016
Luciano Martinez (“Appellant”) appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County, which sitting
as finder of fact in his waiver trial found him guilty of robbery, persons not
to possess a firearm, carrying a firearm without a license, theft by unlawful
taking, theft by receiving stolen property, possession of an instrument of
crime, carrying a firearm on public streets of Philadelphia, simple assault,
recklessly endangering another person, and terroristic threats. Appellant
contends that the Commonwealth introduced insufficient evidence to support
his terroristic threats conviction and that the court imposed an illegal
sentence by imposing separate sentences for the crimes of robbery,
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*
Former Justice specially assigned to the Superior Court.
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terroristic threats, simple assault, and recklessly endangering another
person. We affirm in part and reverse in part.
The trial court aptly provides a pertinent factual history of the case as
follows:
On August 8, 2014, at approximately 8:55 p.m., complainant
and his friend[, who were on their way home to Bucks County
from a contracting job, decided to stop at a] pizza restaurant
located at the corner of Orthodox and Torresdale Streets in
Philadelphia, PA. N.T., 2/24/15 at 19. Because the restaurant
did not have a public restroom, complainant left the pizza
restaurant and walked across the street to find a private location
to relieve himself. Id. at 20. Complainant stopped in an alley
next to a corner store located at 2033 Orthodox Street…. Id. at
19, 44.
Appellant approached complainant and asked [him] if he needed
anything. Id. at 21. Complainant told appellant that he did not
need anything from appellant and that he was in the alley “just
looking for a place to go to the bathroom.” Id. Appellant then
asked complainant, “what do you got?” Id. at 22. Complainant
told appellant that he “did not have anything.” Id. At that
moment, appellant pulled out a silver revolver and pressed it
against complainant’s cheek. Id. at 21-22. Appellant them
slammed complainant against the hood of a nearby motor
vehicle and rummaged through complainant’s pockets. Id. at
22. Appellant took fifty dollars ($50) and a cellular phone from
complainant and ran away. Id. at 22-23.
Trial Court Opinion, filed 2/10/16, at 3-4.
Later that evening, police arrested Appellant and found him in
possession of complainant’s cell phone during a search incident to arrest, but
they found neither complainant’s money nor a handgun on either his person
or at his residence. Id. at 33, 35, 37, 86. A February 4, 2015, bench trial
resulted in convictions on all counts relating to Appellant’s attack of
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complainant, and the court subsequently sentenced Appellant to a six to
twelve year period of incarceration for robbery to which the following
concurrent sentences were also imposed: four to eight years for possession
of a firearm prohibited; two to four years for firearms not to be carried
without license; nine to eighteen months for carrying firearms in public in
Philadelphia; one to two years for possession of an instrument of crime; one
to two years for terroristic threats; one to two years for simple assault; and
one to two years for the reckless endangerment of another person. This
timely appeal followed.
Appellant presents the following two questions for our review:
1. Was not the evidence insufficient to support appellant’s
conviction for terroristic threats where no verbal threats were
uttered by appellant?
2. Did not the trial court err by imposing separate sentences for
the crimes of robbery, terroristic threats, simple assault and
recklessly endangering another person, where the latter three
offenses each merged with robbery for purposes of
sentencing, thereby resulting in an illegal sentence that must
be vacated?
Appellant’s brief at 3.
In his first issue, Appellant argues a conviction for terroristic threats
may not be sustained solely on evidence that he uttered the question “what
do you got?” moments before pointing a gun at complainant and robbing
him. The statute requires the communication of a threat to commit a crime
of violence with intent to terrorize, Appellant maintains, and the evidence at
bar was devoid of any such communication. We disagree.
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When presented with a challenge to the sufficiency of the evidence,
this court’s well-settled standard of review is as follows:
In reviewing the sufficiency of the evidence, we must determine
whether the evidence, and all reasonable inferences deducible
therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner, are sufficient to establish all of
the elements of the offenses beyond a reasonable doubt.
In re L.A., 853 A.2d 388, 391 (Pa.Super. 2004) (citation omitted).
The crime of terroristic threats is committed when a person
“communicates, either directly or indirectly, a threat to commit any crime of
violence with intent to terrorize another.” 18 Pa.C.S.A. § 2706(a)(1). An
express or specific threat is not necessary to sustain a conviction for
terroristic threats. Commonwealth v. Reynolds, 835 A.2d 720 (Pa.Super.
2003). Consequently, “[i]t is unnecessary for an individual to specifically
articulate the crime of violence which he or she intends to commit where the
type of crime may be inferred from the nature of the statement and the
context and circumstances surrounding the utterance of the statement.”
Commonwealth v. Sinnott, 976 A.2d 1184, 1187-188 (Pa.Super. 2009)
(quotations and citations omitted), aff’d in part and rev’d in part, 30 A.3d
1105 (Pa. 2011).
“[T]he harm sought to be prevented by the statute is the psychological
distress that follows from an invasion of another's sense of personal
security[,]” In re B.R., 732 A.2d 633, 636 (Pa.Super. 1999). Nevertheless,
whether the person threatened actually believes the threat will be carried
out is irrelevant, as such a factor is not an element of the offense.”
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Commonwealth v. Reynolds, 835 A.2d 720, 730 (Pa.Super. 2003)
(citation omitted).
The complainant provided the following pertinent testimony about his
encounter with Appellant:
PROSECUTOR: Approximately how far away was the
defendant from you when you were having this conversation?
COMPLAINANT: No more than three feet.
Q: And you indicated that he came up and asked you what
you needed?
A: Yes, ma’am.
Q: Did you know what he was talking about?
A: I had an idea of what he was talking about but it wasn’t
my purpose so I just said nothing. I’m just looking for a place to
go to the bathroom.
Q: And when you told him you were looking for a place to go
to the bathroom, tell His Honor exactly what he did.
A: That’s when he proceeded to say, [‘]what do you got[?’]
and I said [‘]I don’t have anything[’] and he pulled a gun out
and he had slammed me up against the hood of a green car and
started rumbling through my pocket, trying to get what I had.
***
Q: And where was the gun in relation to you?
A: In my cheek – my right cheek.
N.T. 2/24/15, at 21-22, 23.
Here, it is reasonable to infer from the totality of circumstances that
Appellant’s question, posed in a dark alley to complainant after he had
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already indicated he wished to be left alone, was intended both to serve
notice that complainant would not be left alone and to place him in a
resultant state of fear and submission. When complainant, instead, rebuffed
him a second time, Appellant immediately acted on his implied threat of
force by placing a gun against complainant’s face to effectuate the robbery.1
Accordingly, because evidence of Appellant’s words and conduct established
beyond a reasonable doubt a threat to commit a crime with the intent to
terrorize his victim, we reject Appellant’s challenge to the sufficiency of the
evidence offered to prove terroristic threats were made.
In his remaining issue, Appellant argues that the imposition of
separate sentences for the crimes of robbery, terroristic threats, simple
assault, and recklessly endangering another person amounted to an illegal
sentencing scheme, as the court was bound to merge the latter three crimes
as lesser-included offenses of robbery. A claim that crimes should have
merged for sentencing purposes raises a challenge to the legality of the
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1
It is of no moment that Appellant did not explicitly inform complainant of
the nature of the crime he threatened to commit. The combination of
Appellant’s statements and actions taking place in a dark, secluded alley
amounted to a threat to commit a crime of violence. See Commonwealth
v. Hudgens, 582 A.2d 1352 (Pa.Super. 1990) (holding no need to inform
victim of specific crime intended where nature of threat and surrounding
circumstances allowed inference of threat to commit murder or aggravated
assault); Commonwealth v. White, 335 A.2d 436 (Pa.Super. 1975)
(holding threat to commit crime of rape proven by circumstances that
defendant told victim he was “going to grab her” and proceeded to carry her
to abandoned building, pinned her to wall, and lifted skirt before victim’s cry
for help prompted neighbor’s assistance).
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sentence.2 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).
Appellant was charged with and convicted of the following pertinent
offenses under the Crimes Code:
§ 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[;]
§ 2706. Terroristic threats
(a) Offense defined.—A person commits the crime of
terroristic threats if the person communicates, either directly or
indirectly, a threat to:
(1) commit any crime of violence with intent to terrorize
another[;]
§ 2705. Recklessly endangering another person.
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2
We note that this issue is raised for the first time in Appellant's Brief, as
Appellant did not include it in his Pa.R.A.P.1925(b) Concise Statement of
Errors Complained of on Appeal. However, issues regarding the legality of a
sentence are non-waivable. Commonwealth v. Dinoia, 801 A.2d 1254,
1257 (Pa.Super. 2002). Accordingly, this Court may review Appellant's
claim even though it has not been properly preserved.
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A person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place another
person in danger of death or serious bodily injury[;] and
§ 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.
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 2706(a)(1), 2705, and 2701(a)(1).
Whether these offenses merge turns on Section 9765 of our
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.
“The statute's mandate is clear. It prohibits merger unless two distinct
facts are present: 1) the crimes arise from a single criminal act; and 2) all of
the statutory elements of one of the offenses are included in the statutory
elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 833
(Pa. 2009). Accord Commonwealth v. Wade, 33 A.3d 108 (Pa.Super.
2011) (holding Section 9765 prohibits merger of sentences unless strict two-
part test met).
When considering whether there is a single criminal act or
multiple criminal acts, the question is not “whether there was a
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‘break in the chain’ of criminal activity.” The issue is whether
“the actor commits multiple criminal acts beyond that which is
necessary to establish the bare elements of the additional crime,
then the actor will be guilty of multiple crimes which do not
merge for sentencing purposes.”
Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa.Super. 2012).
In determining whether two or more convictions arose from a single
criminal act for purposes of sentencing, we must examine the charging
documents filed by the Commonwealth. Commonwealth v. Jenkins, 96
A.3d 1055, 1060 (Pa.Super. 2014) (holding, consistent with our Supreme
Court’s jurisprudence, “We must determine whether [defendant’s] actions . .
. constituted a single criminal act, with reference to elements of the crime as
charged by the Commonwealth.”) (internal quotation marks and citation
omitted).
In Jenkins, a three-judge panel agreed3 that merger of robbery4 and
simple assault convictions was not applicable to the otherwise lesser and
greater-included offenses5 as charged in that case where the charging
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3
Though not joining the majority decision, Judge Strassburger concurred
that the “convictions do not merge for sentencing purposes because they are
not predicated upon ‘a single criminal act.’ 42 Pa.C.S. § 9765.” Id. at
1064.
4
The defendant in Jenkins was charged with robbery at 18 Pa.C.S. §
3701(a)(1)(iv), which proscribes inflicting bodily injury upon another or
threatening another with or intentionally putting him in fear of immediate
bodily injury during the course of a theft.
5
The panel agreed that, “[w]ere it the case that Jenkins’ [sic] had been
convicted of both simple assault and robbery upon the basis of a single
(Footnote Continued Next Page)
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documents and the victim’s testimony listed an act in support of the robbery
that was not included among the acts forming the basis for simple assault.
Specifically, the bodily injury elements to both the robbery and simple
assault charges were based on initial blows to the victim’s face that put him
to the ground. Only the robbery charge, however, was supported by
additional evidence that defendant then placed his boot on the prostrate
victim’s face to restrain him, an act which the victim testified was both
frightful and painful.
The panel observed that the events listed in the information and
described by the victim at trial would, therefore, establish the bodily injury
element of robbery without regard to the facts that supported the charge of
simple assault. The panel reasoned:
“Had the Commonwealth listed only the assaultive conduct that
formed the basis of the simple assault charge against Jenkins at
the robbery charge, we would conclude that Jenkins did not
commit “multiple criminal acts beyond that which is necessary to
establish the bare elements of the additional crime.
***
However, the Commonwealth’s description of the conduct
forming the basis of the robbery charge against Jenkins also
included the Defendants’ conduct in restraining Caracillo on the
ground. Caracillo’s testimony indicates that the Defendants
restrained him by holding a foot to his head in a manner that
exacerbated his existent facial injuries. N.T. at 100. This
additional physical restraint caused Caracillo substantial pain.
Id. These events would establish the “bodily injury” element of
_______________________
(Footnote Continued)
criminal act, we would likely order Jenkins’ resentencing because simple
assault appears to be a lesser included offense of robbery.” Id. at 1062
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robbery, even in the absence of the facts that established
Jenkins’ conviction for simple assault.
Id. at 1062. Accordingly, the panel concluded that the crimes were the
result of multiple criminal acts precluding merger of the convictions for
purposes of sentencing.
Our recent decision in Commonwealth v. Kimmel, 125 A.3d 1272
(Pa.Super. (2015)) (en banc), concluded that the dictates of Jenkins were
satisfied where the criminal complaint and information set forth generic
charges of DUI and felony fleeing, while the affidavit of probable cause
supplied the factual narrative of Appellant’s DUI stop and subsequent flight-
by-vehicle from the scene of the stop. Id. at 1276-77. Viewing these
documents as a whole and understanding them to delineate separate
criminal acts, which were later reflected in the trial testimony, see Id. at
1276, the majority held that the Commonwealth established the factual
predicates to avoid merger pursuant to Jenkins.6
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6
Concurring in the result, Judge Olson departed from the majority’s
reasoning that other records could supply the factual account necessary to
discern that charges were based on separate criminal acts:
The information charged generically that [defendant] committed
DUI and fleeing, without specifying when the crimes occurred.
However, it is clear that Appellant’s post-stop actions constituted
both a DUI (because Appellant operated his vehicle while
intoxicated) and fleeing (because Appellant departed from a
signaled police detention). Because of the generic nature of the
allegations set forth in the information, I cannot say with
certainty, as this Court could in Jenkins, that there were two
separate criminal acts.
(Footnote Continued Next Page)
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Applying pertinent authority to the present matter, it is apparent from
the criminal information, complaint, and affidavit of probable cause that the
Commonwealth did not allege criminal acts that constituted terroristic
threats as distinct or delineated from the conduct that constituted robbery.
Indeed, the information offers only a generic recitation of the offenses and
the statutory elements of each, while the factual accounts in both the
complaint and the affidavit of probable cause describe Appellant’s
“approach” of the complainant and robbery by gunpoint in the next moment
as a seamless event occurring in the course of a theft.
Unlike in Jenkins and Kimmel, therefore, neither the charging
information nor supporting documents of record describe the operative facts
in such a way as to distinguish the specific conduct underlying the offenses
of robbery and terroristic threats, respectively. We may not conclude,
therefore, that the offenses were based on two discrete criminal acts for
_______________________
(Footnote Continued)
In reviewing the information in this case, the total lack of facts
prevents me from concluding that Appellant was charged with a
DUI, followed by a stop, followed by a charge for fleeing while
DUI. Nor can I say with certainty that the jury necessarily found
this version of the events proven beyond a reasonable doubt. In
the absence of precise allegations (similar to those in Jenkins)
asserting that Appellant’s DUI offense arose from his pre-stop
operation of a motor vehicle, it is just as conceivable that the
Commonwealth charged Appellant with DUI, and fleeing while
DUI, based entirely on his conduct following the traffic stop by
[the police officer].
Id. at 1280, 1281 (Olson, J. concurring).
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purposes of avoiding merger at sentencing. Compare Commonwealth v.
Melvin, 548 A.2d 275, 280–281 (Pa.Super. 1988) (terroristic threats did not
merge with robbery where, after defendant completed robbery, he ordered
people remaining in store to get into back room or he would shoot them.
“Although the terroristic threat and the robbery occurred during the same
episode, each act was a separate and distinct injury....”).
We must, then, turn to 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. We find that
they are.
Specifically, the relevant elements of terroristic threats comprise the
communication of a threat to commit a crime of violence with the intent to
cause terror. Robbery, as charged in this case, requires threatening serious
bodily injury or intending to place a victim in fear of serious bodily injury.
Though the two statutes do not employ identical words, it would be
championing a distinction without a difference to conclude that threatening
serious bodily injury or intending to cause fear of serious bodily injury was
not the functional equivalent of a threat of violence intended to cause terror.
Particularly where, as here, both offenses arose from the same act, we do
not discern from these statutes the legislative intent to permit separate
sentences. We must, therefore, reverse judgment of sentence in this
respect, as Appellant’s terroristic threats and robbery convictions merged for
purposes of sentencing.
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In reviewing whether Appellant’s conviction for REAP merges with his
conviction for robbery, however, a comparison of the respective statutes
leads to the conclusion that each offense requires proof of an element that
the other does not, and, therefore, cannot merge for sentencing purposes.
Indeed, among the elements of REAP is the requirement that the defendant
possessed the “actual present ability to inflict harm.” See Reynolds, supra
at 727-28. This evidentiary burden exceeds that required for robbery under
Section 3701(a)(1)(ii), which only requires proof that the defendant
threatened another with, or intentionally placed a person in fear of,
immediate serious bodily injury whether or not the ability to cause such
injury was actual. Moreover, REAP does not concern itself with the victim’s
state of mind, while robbery under Section 3701(a)(1)(ii) requires proof that
the victim was placed in fear of serious bodily injury. Appellant’s merger
argument with respect to REAP and robbery is, therefore, unavailing.
Appellant’s conviction for simple assault, likewise, does not merge with
his Section 3701(a)(1)(ii) robbery conviction when comparing the two
statutes under a Section 9765 analysis. Appellant’s simple assault
conviction required evidence that he caused or attempted to cause
complainant bodily injury, while his robbery conviction required no proof of
injury or attempted injury but only that he threatened complainant with or
intentionally placed him in fear of serious bodily injury. Conversely, robbery
required proof that the proscribed conduct occurred during the course of a
theft, while simple assault required no such proof. Between Appellant’s
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robbery and simple assault convictions, where all statutory elements of one
conviction were not contained within the statutory elements of the other, the
trial court properly declined to merge the convictions for purposes of
sentencing.
Accordingly, we reverse the judgment of sentence for terroristic
threats at count nine, as it merges with robbery at count one. We need not
remand for re-sentencing, however, as we have not upset the sentencing
scheme consisting entirely of concurrent sentences. See Commonwealth
v. Thur, 906 A.2d 552, 570 (Pa.Super. 2006) (holding if appellate court can
vacate illegal sentence without upsetting the trial court’s overall sentencing
scheme, it need not remand for resentencing); Commonwealth v. Klein,
795 A.2d 424, 430-31 (Pa.Super. 2002) (holding “where a case requires a
correction of sentence, this [C]ourt has the option of either remanding for
resentencing or amending the sentence directly.”). The judgment of
sentence as corrected in this opinion is affirmed in all other respects.
Convictions affirmed. Judgment of sentence affirmed in part and
reversed in part. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2016
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