Com. v. Miller, J.

J-S27013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES MILLER :
:
Appellant : No. 1044 EDA 2016
Appeal from the Judgment of Sentence March 9, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001551-2014
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 09, 2017
Appellant, James Miller, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his
bench trial convictions of two counts each of robbery and criminal
conspiracy, and one count of theft by unlawful taking or disposition—
movable property.1 We affirm.
The relevant facts and procedural history of this case are as follows.
Victims placed an advertisement on Craigslist, which indicated their desire to
purchase cell phones for resale purposes. Appellant responded to the
advertisement and informed Victims he had sixteen new iPhones available
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1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903, and 3921(a), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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for sale. The parties subsequently planned to meet for the transaction at
Franklin Mills Mall. On October 21, 2013, Appellant arrived at the mall in a
Chevy Impala, followed by his co-defendant in a Jeep. Appellant exited his
vehicle, showed Victims one iPhone, and told Victims the rest of the iPhones
were in the Jeep. Victims subsequently walked over to the Jeep, where
Appellant’s co-defendant demanded to see the money before he allowed
Victims to examine the remaining iPhones. During the exchange, Appellant’s
co-defendant pointed a gun at Victims, told Victims to get on the ground,
and stole $6,500.00 in cash from Victims. Appellant and his co-defendant
then fled in their respective vehicles. Victims memorized the Jeep’s license
plate number, as the vehicle drove away, and called the police immediately
after the incident. Using the Jeep’s license plate number, police identified
Appellant and his co-defendant. Both Victims subsequently identified
Appellant and his co-defendant as the perpetrators of the robbery.
On February 19, 2014, the Commonwealth charged Appellant with two
counts each of robbery, criminal conspiracy, simple assault, recklessly
endangering another person (“REAP”), and one count each of persons not to
possess firearms, firearms not to be carried without a license, carrying
firearms on public streets in Philadelphia, theft by unlawful taking or
disposition—movable property, receiving stolen property, and possessing
instruments of crime. Appellant proceeded to a bench trial. The court
ultimately convicted Appellant on July 16, 2015, of two counts each of
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robbery and criminal conspiracy, and one count of theft by unlawful taking
or disposition—movable property. The court deferred sentencing pending
the preparation of a pre-sentence investigation (“PSI”) report.
On March 9, 2016, the court sentenced Appellant to three and one-half
(3½) to ten (10) years’ imprisonment for each of Appellant’s two robbery
convictions, and three and one-half (3½) to ten (10) years’ imprisonment for
each of Appellant’s two criminal conspiracy convictions. The court ordered
Appellant to serve all sentences concurrently; thus, Appellant received an
aggregate term of three and one-half (3½) to ten (10) years’ imprisonment.
Appellant timely filed a notice of appeal on April 4, 2016. On May 6, 2016,
the court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant’s counsel filed a
Rule 1925(c)(4) statement of intent to file an Anders brief on May 24,
2016.2
Appellant raises the following issue for our review:
DO THE TWO COUNTS OF CRIMINAL CONSPIRACY, WHICH
OCCURRED UNDER THE SAME CONTINUOUS
CONSPIRATORIAL RELATIONSHIP, MERGE FOR
SENTENCING PURPOSES?
(Appellant’s Brief at 3).
Appellant argues the Commonwealth failed to present evidence of
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2
Despite the filing of a Rule 1925(c)(4) statement, counsel has filed an
advocate’s brief on Appellant’s behalf.
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separate, conspiratorial agreements for the robbery of each Victim to justify
the imposition of separate sentences for Appellant’s two conspiracy
convictions. Appellant maintains the evidence presented at trial
demonstrated the robbery of both Victims was the product of one conspiracy
pursuant to Section 903(c). Appellant claims the court’s imposition of
separate sentences for each conspiracy conviction amounts to punishing
Appellant twice for the same conduct. Appellant concludes the court erred
when it imposed a separate sentence for each of Appellant’s two criminal
conspiracy convictions, and this Court should vacate one of his criminal
conspiracy convictions. After a thorough review, we conclude Appellant has
waived this issue.
“[A]s a general rule, the failure to raise an issue in an ordered Rule
1925(b) statement results in the waiver of that issue on appeal.”
Commonwealth v. Poncala, 915 A.2d 97, 100 (Pa.Super. 2006), appeal
denied, 594 Pa. 678, 932 A.2d 1287 (2007). Any issue not raised in a Rule
1925(b) statement will be deemed waived. Id. As long as the reviewing
court has jurisdiction, however, a challenge to the legality of the sentence is
non-waivable and this Court can even raise and address it sua sponte.
Commonwealth v. Infante, 63 A.3d 358 (Pa.Super. 2013).
Importantly, Section 903 of the Crimes Code provides in relevant part:
§ 903. Criminal conspiracy
* * *
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(c) Conspiracy with multiple criminal objectives.—
If a person conspires to commit a number of crimes, he is
guilty of only one conspiracy so long as multiple crimes are
the object of the same agreement or continuous
conspiratorial relationship.
18 Pa.C.S.A. § 903(c). “This subsection reflects the fact that the conspiracy
is the crime, and that [it] is one, however diverse its objects.” By its terms,
Section 903(c) implicates a factual assessment of either the conspiratorial
agreement or the relationship of the conspirators.” Commonwealth v.
Andrews, 564 Pa. 321, 330, 768 A.2d 309, 314 (2001) (internal citations
and quotations marks omitted). As a result, a challenge to the imposition of
multiple conspiracy sentences pursuant to Section 903(c) is a challenge to
the sufficiency of the evidence, not a challenge to the legality of the
sentence, because the claim centers on the fact-based question of whether
the crimes were the product of one agreement or multiple agreements.
Commonwealth v. Marinez, 777 A.2d 1121, 1125 (Pa.Super. 2001),
appeal denied, 567 Pa. 739, 788 A.2d 374 (2001) (citing Andrews, supra).
Instantly, the court sentenced Appellant to an aggregate term of three
and one-half (3½) to ten (10) years’ imprisonment on March 9, 2016.
Significantly, Appellant’s sentence included individual, concurrent terms of
three and one-half (3½) to ten (10) years’ imprisonment for each of
Appellant’s two criminal conspiracy convictions. Appellant did not file a post-
sentence motion; however, Appellant timely filed a notice of appeal on April
4, 2016. In response to the court-ordered Rule 1925(b) statement, on May
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24, 2016, Appellant’s counsel filed a Rule 1925(c)(4) statement of his intent
to file an Anders brief. Counsel’s Rule 1925(c)(4) statement indicated
Appellant’s desire to raise the following issues on appeal:
1. THE TRIAL COURT COMMITTED AN ABUSE OF
DISCRETION BY DENYING A MOTION FOR A MISTRIAL
PROFFERED AFTER A WITNESS IMPLIED THAT APPELLANT
THREATENED HIM UNLESS THE WITNESS DROPPED THE
CASE BECAUSE THERE WAS NO MENTION OF ANY
THREATS IN THE DISCOVERY MATERIAL PROVIDED TO
THE DEFENSE.
2. THE TRIAL COURT COMMITTED AN ABUSE OF
DISCRETION BY DENYING A MOTION FOR A MISTRIAL
PROFFERED AFTER A KEY COMMONWEALTH WITNESS
INDICATED THAT HE HAD VIOLATED A SEQUESTRATION
ORDER.
(See Rule 1925(c)(4) Statement, filed May 24, 2016, at 1). Counsel
subsequently filed an advocate’s brief on Appellant’s behalf, which raised
only the following issue for our review:
DO THE TWO COUNTS OF CRIMINAL CONSPIRACY, WHICH
OCCURRED UNDER THE SAME CONTINUOUS
CONSPIRATORIAL RELATIONSHIP, MERGE FOR
SENTENCING PURPOSES?
(See Appellant’s Brief, filed November 11, 2016, at 3). In his argument,
Appellant asserts the court’s imposition of two separate sentences for his
two criminal conspiracy convictions constitutes an “illegal” sentence
pursuant to Section 903(c). Under settled, controlling precedent, however,
Appellant’s claim is actually a challenge to the sufficiency of the evidence
due to the fact-based assessment required to resolve the issue. See
Marinez, supra. Because Appellant failed to raise this claim before the trial
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court or in his court-ordered Rule 1925(b) statement, it is waived for
purposes of this appeal. See Poncala, supra. Accordingly, we affirm the
judgment of sentence.3
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2017
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3
We observe the Pennsylvania Supreme Court’s recent decision in
Commonwealth v. Rosado, ___ Pa. ___, 150 A.3d 425 (2016), which
states “the filing of an appellate brief which abandons all preserved issues in
favor of unpreserved ones constitutes ineffective assistance of counsel per
se.” Id. at ___, 150 A.3d at 434. Generally, however, “claims of ineffective
assistance of counsel are to be deferred to PCRA review.” Commonwealth
v. Holmes, 621 Pa. 595, 620, 79 A.3d 562, 576 (2013). Instantly,
counsel’s abandonment of the preserved issues raised in the Rule 1925(c)(4)
statement in favor of the unpreserved sufficiency of the evidence issue
raised in Appellant’s brief might constitute ineffective assistance of counsel.
See Rosado, supra. Nevertheless, to obtain relief, Appellant must raise his
claim in a timely filed PCRA petition under the rubric of ineffective assistance
of counsel. See Holmes, supra.
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