Com. v. Boggs, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERON GIBSON BOGGS :
:
Appellant : No. 2890 EDA 2022
Appeal from the Judgment of Sentence Entered September 1, 2021
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0008098-2018
BEFORE: NICHOLS, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: FILED AUGUST 03, 2023
Appellant Jeron Gibson Boggs appeals nunc pro tunc from the judgment
of sentence imposed after he pled guilty to five counts of possession with
intent to deliver a controlled substance (PWID), two counts of criminal
conspiracy, and one count each of corrupt organizations, dealing in proceeds
of unlawful activities, and criminal use of a communication facility.1 On
appeal, Appellant challenges the discretionary aspects of his sentence and
argues that the trial court abused its discretion when it imposed an aggregate
sentence of eight to nineteen years of incarceration. After review, we affirm.
The record reflects that the Commonwealth charged Appellant in a 280-
count criminal information involving the distribution of heroin and fentanyl.
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* Former Justice specially assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30); 18 Pa.C.S. §§ 903, 911(b)(3), 5111(a)(1), and
7512(a), respectively.
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See Criminal Information, 1/31/19. The trial court summarized the relevant
facts and procedural history of this matter as follows:
[O]n October 8, 2019, [Appellant] entered an open guilty plea to
[five counts of PWID, two counts of criminal conspiracy
(conspiracy to commit PWID and conspiracy to commit corrupt
organizations), and one count each of corrupt organizations,
dealing in proceeds of unlawful activities, and criminal use of a
communication facility], admitting that from January 1, 2018
through September 26, 2018, he was associated with an
enterprise engaging in selling drugs. He was involved in the
enterprise along with George King and his heroin and cocaine
suppliers. There were also others involved that were dealing
drugs, heroin and fentanyl. [Appellant] admitted that he was
buying drugs from Mr. King in Philadelphia and selling those drugs
in Norristown, Montgomery County. More specifically, [Appellant]
obtained about a total of 97 bundles of heroin from Mr. King over
several dates, September 10, 2018, September 15, 2018,
September 20, 2018, and September 21, 2018. In addition, there
were 27.98 grams of heroin, clonazepam, trazodone, and
amphetamines found at his residence as a result of a search
warrant, that he possessed with the intent to sell. Further,
[Appellant] recruited the aid of others to help him in his
distribution. Finally, [Appellant] agreed that he took over the drug
dealing business of Daymon Bell, and that Mr. Bell gave him a
customer list when Mr. Bell went to prison. The [trial c]ourt
accepted [Appellant’s] guilty plea. On October 21, 2019, a motion
to withdraw[] guilty plea was filed, and after a hearing the motion
was denied.
Trial Ct. Op., 1/17/23, at 1-2 (internal citations omitted and formatting
altered).
On September 1, 2021, the trial court imposed sentences in the
standard-range of the Sentencing Guidelines and sentenced Appellant as
follows: Count 71 (conspiracy), four to eight years of incarceration; Count 2
(corrupt organizations), two to five years of incarceration; Count 3
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(conspiracy), two to five years of incarceration; Count 4 (dealing in proceeds
of unlawful activities), one to two years of incarceration; Count 11 (PWID),
two to five years of incarceration; Count 37 (PWID), two to five years of
incarceration; Count 53 (PWID), two to five years of incarceration; Count 60
(PWID), two to five years of incarceration; Count 70 (PWID), two to five years
of incarceration; and Count 78 (criminal use of a communication facility), one
to two years of incarceration. See N.T. Sentencing, 9/1/21, at 41-43. The
trial court ordered Appellant to serve the sentences at Counts 4, 53, 60, 70,
and 78 consecutively resulting in an aggregate term of eight to nineteen years
of incarceration. See id.
On September 13, 2021, Appellant filed a post-sentence motion. The
trial court did not rule on this motion, and Appellant did not file a direct appeal.
On August 25, 2022, Appellant filed a timely Post Conviction Relief Act2
(PCRA) petition asserting that his trial counsel was ineffective for failing to file
a direct appeal and requested the reinstatement of Appellant’s direct appeal
rights nunc pro tunc. See PCRA Pet., 8/25/22, at 6-9. On October 25, 2022,
the PCRA court granted Appellant’s PCRA petition and reinstated Appellant’s
direct appeal rights nunc pro tunc. Order, 10/25/22. Appellant filed a timely
notice of appeal nunc pro tunc on November 14, 2022, and both the trial court
and Appellant complied with Pa.R.A.P. 1925.
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2 42 Pa.C.S. §§ 9541-9546.
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On appeal, Appellant raises the following issues:
1. Is the sentence imposed unreasonable given that the
aggregate consecutive sentences totaling eight (8) to nineteen
(19) years constitute a manifest abuse of discretion[?]
2. Did the trial court err by failing to allow a post-sentence motion
for reconsideration to be filed, given that the prior motion for
reconsideration was determined to be filed untimely?[FN1]
[FN1] The trial court determined in its opinion filed on
January 17, 2023, that prior counsel’s motion for
reconsideration was untimely filed despite the
Commonwealth agreeing that the motion was timely
filed. However, the trial court’s determination was
made on the record in its opinion filed after Appellant’s
Concise Statement was submitted on November 26,
2022.
Appellant’s Brief at 4. Because Appellant’s issues are interrelated, we address
them concurrently.
“[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citations omitted). Before reaching the merits of such
claims, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.
2119(f)] concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is inappropriate under the
sentencing code.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations
omitted). “To preserve an attack on the discretionary aspects of sentence, an
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appellant must raise his issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a)
(stating that “[i]ssues not raised in the trial court are waived and cannot be
raised for the first time on appeal”).
The trial court concluded that Appellant’s September 13, 2021 post-
sentence motion was untimely. See Trial Ct. Op. at 4. The trial court
sentenced Appellant on September 1, 2021, and therefore Appellant had ten
days in which to file a timely post-sentence motion. Pa.R.Crim.P. 720(A)(1).
The tenth day fell on Saturday, September 11, 2021. As such, Monday,
September 13, 2021, was the first day the courts were open following the
expiration of the ten-day period. See 1 Pa.C.S. § 1908 (providing that for
computations of time, if the last day of any such period shall fall on a Saturday,
Sunday, or on a legal holiday, such day shall be omitted from the
computation). Accordingly, we conclude that Appellant’s September 13, 2021
post-sentence motion was timely.
Further, the record reflects that the trial court never ruled on Appellant’s
post-sentence motion, and the post-sentence motion was denied by operation
of law 120 days later on January 11, 2022. See Pa.R.Crim.P. 720(B)(3)(a).
However, the clerk of court did not notify Appellant that his post-sentence
motion was denied by operation of a law or inform Appellant of his direct
appeal rights, and this failure constitutes a breakdown in the operation of the
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court. See Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super.
2007) (collecting cases stating that “a court breakdown occurred in instances
where the trial court, . . . either failed to advise [the a]ppellant of his post-
sentence and appellate rights[,] or misadvised him.”); Commonwealth v.
Perry, 820 A.2d 734, 735 (Pa. Super. 2003) (stating “where the clerk of
courts does not enter an order indicating that the post-sentence motion is
denied by operation of law and notify the defendant of same, a breakdown in
the court system has occurred and we will not find an appeal untimely under
these circumstances.” (citations omitted)); Pa.R.Crim.P. 720(B)(3)(c).
However, on August 25, 2022, Appellant filed a timely PCRA petition
requesting the reinstatement of his direct appellate rights nunc pro tunc, the
PCRA court reinstated Appellant’s direct appeal rights nunc pro tunc, and
Appellant filed a timely appeal.3 Accordingly, we conclude that the
“breakdown was remedied by the PCRA court restoring Appellant’s appeal
rights.” Commonwealth v. Gabriel, 2284 EDA 2019, 2021 WL 2289067, at
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3 As stated above, in its 1925(a) opinion, the trial court concludes that
Appellant’s September 13, 2021 post-sentence motion was untimely and,
therefore, failed to preserve any challenges to the discretionary aspects of the
sentence. As noted, we conclude that Appellant’s post-sentence motion was
timely and are constrained to conclude that the trial court’s finding was
erroneous.
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*1 n.1 (Pa. Super. filed June 2, 2021) (unpublished mem.) (quotation marks
omitted).4 Therefore, we proceed with our discussion. See id.5
The next requirement that Appellant must satisfy for this Court to reach
the merits of his challenge to the discretionary aspects of a sentence is the
inclusion of a Rule 2119(f) statement in the appellate brief. Corley, 31 A.3d
at 296. Here, Appellant has included a Rule 2119(f) statement in his brief.
See Appellant’s Brief at 7-8. Therefore, we next consider whether Appellant
has raised a substantial question for review. Corley, 31 A.3d at 296.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d
1086, 1090 (Pa. Super. 2017) (citation omitted). “A substantial question
exists only when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Commonwealth v. Grays, 167 A.3d
793, 816 (Pa. Super. 2017) (citation omitted).
“Generally, Pennsylvania law affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other sentences being
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4 See Pa.R.A.P. 126(b) (providing that unpublished non-precedential decisions
of the Superior Court filed after May 1, 2019, may be cited for their persuasive
value).
5 Because we conclude that Appellant filed a timely post-sentence motion
preserving his challenge to the discretionary aspects of his sentence, we need
not address whether Appellant should have been permitted to file a post-
sentence motion nunc pro tunc.
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imposed at the same time or to sentences already imposed. Any challenge to
the exercise of this discretion ordinarily does not raise a substantial question.”
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (citation and
quotation marks omitted). This Court has also stated that “ordinarily, a claim
that the sentencing court failed to consider or accord proper weight to a
specific sentencing factor does not raise a substantial question.”
Commonwealth v. Swope, 123 A.3d 333, 339 (Pa. Super. 2015) (citation
omitted and emphasis in original).
However, “an excessive sentence claim—in conjunction with an
assertion that the court failed to consider mitigating factors—raises a
substantial question.” Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa.
Super. 2015) (en banc) (citations omitted). Further, this Court has held that
an appellant’s “challenge to the imposition of his consecutive sentences as
unduly excessive, together with his claim that the court failed to consider his
rehabilitative needs and mitigating factors upon fashioning its sentence,
presents a substantial question.” Swope, 123 A.3d at 340.
In his Rule 2119(f) statement, Appellant argues that the trial court failed
to consider mitigating factors and Appellant’s rehabilitative needs, imposed a
manifestly excessive sentence because it was “overly focused on the
offenses,” and the court abused its discretion by imposing consecutive
sentences. See Appellant’s Brief at 7-8. We conclude that Appellant has
raised a substantial question for our review. See Swope, 123 A.3d at 340.
Accordingly, we will review the merits of Appellant’s underlying claim.
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Our well-settled standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted). Additionally, “[w]e cannot re-weigh the sentencing factors and
impose our judgment in the place of the sentencing court.” Commonwealth
v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009) (citation omitted).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public,
[the] gravity of offense in relation to impact on victim and community, and
[the] rehabilitative needs of the defendant.” Commonwealth v. Fullin, 892
A.2d 843, 847 (Pa. Super. 2006) (citation omitted and formatting altered).
“[T]he trial court is required to consider the particular circumstances of
the offense and the character of the defendant[,]” including the defendant’s
“prior criminal record, age, personal characteristics, and potential for
rehabilitation.” Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.
Super. 2009) (citation omitted). This Court has held that “where the
sentencing judge had the benefit of a [PSI report], it will be presumed that he
or she was aware of the relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
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factors.” Id. (citation omitted). This Court may only disturb a standard-range
sentence if we find that the circumstances of the case rendered the application
of the guidelines “clearly unreasonable[.]” 42 Pa.C.S. § 9781(c)(2).
It is well settled that “Pennsylvania law affords the sentencing court
discretion to impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already imposed.”
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013) (citation
omitted). Further, this Court has explained that “defendants convicted of
multiple offenses are not entitled to a ‘volume discount’ on their aggregate
sentence.” Commonwealth v. Foust, 180 A.3d 416, 434 (Pa. Super. 2018)
(citations omitted), abrogated on other grounds by Commonwealth v.
Felder, 269 A.3d 1232 (Pa. 2022).
At sentencing, the trial court stated as follows:
THE COURT: Very well. The court does have the benefit of a [PSI]
report in this case which I’ve carefully considered. I’ve also
carefully considered the [Probation Parole Intervention (PPI)]
report and recommendation there, together with the testimony,
[Appellant’s] statement given today, the submission of counsel,
letters on his behalf, and the Sentencing Code and the Sentencing
Guidelines. We’ve gone over the Sentencing Guidelines
previously.
I have considered [Appellant’s] upbringing . . . as set forth in great
detail in the [PSI report] which also sets forth things such as his
work history, his criminal history, and other information which I’ve
carefully considered.
It’s certainly to [Appellant’s] credit that he has the support of
family and friends who are here today or wrote letters on his
behalf. I’ve considered those things also.
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The situation the court is dealing with is a defendant who was
engaged in ongoing distribution of heroin bought from Mr. King
for resale to some 20 customers as he identified in his guilty plea.
This is very serious, dangerous, criminal activity. We’re dealing
with, for sentencing purposes, 30 bundles, 12.6 grams, on
September 10th; another 30 bundles, 12.6 grams, on September
15th; 17 bundles, 7.14 grams, on September 20th; 20 bundles,
8.4 grams on September 21; and the search warrant found 27.98
grams of heroin, 40 bundles, and other drugs.
This is dangerous, serious criminal activity. In my view, it does
merit consecutive sentences and does not merit a mitigated
sentence. I certainly feel that a lesser sentence than one that I
impose would depreciate the length and breadth of his criminal
activity.
The fact is also he has been involved in criminal activity before
and did not learn from it. The adjudication of robbery is distant
in time, but he was committed to Glen Mills and he was
adjudicated again a year later or so on a drug act violation. And
then as an adult, he had the possession of controlled substance
and then driving under the influence.
It’s not as though [Appellant] just made a mistake. He knowingly
and intentionally engaged in serious criminal conduct day after
day, very dangerous criminal activity over and over again. He is
an intelligent person. He knew what he was doing. There really
is no excuse for his conduct. The impact of this kind of criminal
activity on society is very, very negative. People do get addicted.
There’s the risk of death involved with this kind of thing.
[Appellant’s] own problems with substance abuse is set forth in
the PPI evaluation and they find a severe opioid use disorder,
mentioning fentanyl, heroin, and Percocet, and they find it’s in
remission when he’s in a controlled environment, and I believe
that’s his history. If he’s on the street, he’s probably using drugs.
That’s criminal activity in and of itself. So there is a risk of him
committing new crimes when not incarcerated due in part to that.
The sentence that I impose is consistent with the protection of the
public, the gravity of the offense, the numerous crimes here, and
the negative impact of his crimes on our community. I believe he
is in need of treatment that can be best provided by his
commitment to state prison. The sentence that I impose is
appropriate given his character and attitude.
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N.T. Sentencing, 9/1/21, at 38-41 (some formatting altered).
Based on our review of the record, we discern no abuse of discretion by
the trial court. See Raven, 97 A.3d at 1253. Appellant pled guilty to ten
separate criminal counts, and as noted previously, he was not entitled to a
volume discount on his crimes. See Foust, 180 A.3d at 434. Indeed, due to
the number of criminal charges to which Appellant entered an open guilty plea,
Appellant was facing a possible statutory maximum aggregate sentence of 75
to 150 years of incarceration. See N.T. Sentencing, 9/1/21, at 6-7. The
record reflects that the trial court considered the PSI report, the relevant
sentencing factors, and the mitigating evidence presented at the sentencing
hearing. See Ventura, 975 A.2d at 1135. Ultimately, the trial court carefully
considered the applicable sentencing factors, imposed sentences in the
standard range of the guidelines, concluded that it was appropriate under the
circumstances to direct Appellant to serve some of the sentences
consecutively, and imposed an aggregate sentence of eight to nineteen years
of incarceration. See N.T. Sentencing, 9/1/21, at 38-41. On this record, we
have no basis upon which to conclude that the sentence was excessive, that
the trial court focused on the nature of the crimes, or that the trial court
abused its discretion in structuring part of Appellant’s sentences
consecutively. See 42 Pa.C.S. § 9781(c)(2); Foust, 180 A.3d at 434; Austin,
66 A.3d at 808. Therefore, Appellant is not entitled to relief on his challenge
to the discretionary aspects of his sentence.
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Finally, although Appellant did not include the issue in his Rule 1925(b)
statement or in his statement of questions presented, Appellant mentions,
albeit briefly, that “the doctrine of merger” applies to his sentence. See
Appellant’s Brief at 9, 14. However, Appellant fails to state which crimes
should have merged for purposes of sentencing. Nevertheless, merger
presents a non-waivable challenge to the legality of the sentence imposed, for
which this Court exercises plenary de novo review. See Commonwealth v.
Watson, 228 A.3d 928, 941 (Pa. Super. 2020). Accordingly, we will address
whether Appellant’s crimes should have merged for purposes of sentencing.
See id.Although the trial court did not address this issue, the Commonwealth
responded that Appellant failed to acknowledge the statute regarding merger
of sentences that became effective February 7, 2003, 42 Pa.C.S. § 9765, Act
215 of 2002 of the Sentencing Code,6 that superseded the appellate decisions
that Appellant relies on in his argument. In support, the Commonwealth cites
our Supreme Court’s application of the statute which observed:
The statute’s mandate is clear. It prohibits merger unless two
distinct facts are present: 1) the crimes arise from a single
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6 Section 9765 provides as follows:
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. § 9765.
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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. 2008).
Further, the Commonwealth cites cases in which this Court considered
and rejected the same arguments made by Appellant in the instant case and
argues that Appellant’s merger claim is meritless because all of the statutory
elements of the offenses are not included in each other. Commonwealth’s
Brief at 16-18 (citing Commonwealth v. Lynch, 242 A.3d 339 (Pa. Super.
2020), appeal denied, 252 A.3d 107 (Pa. 2021); Commonwealth v. Cianci,
130 A.3d 780, 782 (Pa. Super. 2015)).
As noted, when reviewing the legality of a sentence, our standard of
review is de novo and our scope of review is plenary. Watson, 228 A.3d at
941. Section 9765 prohibits merger unless the crimes arise from a single
criminal act and all of the statutory elements of one of the offenses are
included in the statutory elements of the other. Baldwin, 985 A.2d at 833;
42 Pa.C.S. § 9765. When the offenses stem from separate criminal acts,
merger does not apply. See Commonwealth v. Williams, 958 A.2d 522,
527 (Pa. Super. 2008).
As set forth above, Appellant pled guilty to five counts of PWID, two
counts of criminal conspiracy, and one count each of corrupt organizations,
dealing in proceeds of unlawful activities, and criminal use of a communication
facility. These crimes are defined, in relevant part, as follows:
PWID:
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Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with intent
to deliver, a counterfeit controlled substance.
35 P.S. § 780-113(a)(30).
Conspiracy:
(a) Definition of conspiracy.—A person is guilty of conspiracy with
another person or persons to commit a crime if with the intent of
promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one
or more of them will engage in conduct which constitutes such
crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning
or commission of such crime or of an attempt or solicitation to
commit such crime.
18 Pa.C.S § 903(a) (formatting altered).
Corrupt organizations:
(b) Prohibited activities.—
* * *
(3) It shall be unlawful for any person employed by or
associated with any enterprise to conduct or participate,
directly or indirectly, in the conduct of such enterprise’s affairs
through a pattern of racketeering activity.
18 Pa.C.S § 911(b)(3) (formatting altered).
Dealing in proceeds of unlawful activities:
(a) Offense defined.—A person commits a felony of the first
degree if the person conducts a financial transaction under any of
the following circumstances:
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(1) With knowledge that the property involved, including stolen
or illegally obtained property, represents the proceeds of
unlawful activity, the person acts with the intent to promote
the carrying on of the unlawful activity.
18 Pa.C.S § 5111(a)(1) (formatting altered).
Criminal use of a communications facility
(a) Offense defined.—A person commits a felony of the third
degree if that person uses a communication facility to commit,
cause or facilitate the commission or the attempt thereof of any
crime which constitutes a felony under this title or under the act
of April 14, 1972 (P.L. 233, No. 64), known as The Controlled
Substance, Drug, Device and Cosmetic Act. Every instance where
the communication facility is utilized constitutes a separate
offense under this section.
18 Pa.C.S § 7512(a) (formatting altered and footnote omitted).
The record reflects that Appellant pled guilty to engaging in a criminal
enterprise of drug purchases and distribution from January 1, 2018, through
approximately September 26, 2018, where Appellant and other individuals
carried out numerous transactions and worked together to engage in a pattern
of racketeering activities, specifically including the purchase and sale of drugs.
See N.T. Guilty Plea Hr’g, 10/8/19, at 9-12. The record reveals five specific
instances of PWID which occurred on: September 10, 2018, September 15,
2018, September 20, 2018, September 21, 2018, and September 26, 2018.
See id. at 9-14. Indeed, the record reflects that Appellant admitted at his
guilty plea hearing that he engaged in the procurement and distribution of
heroin, fentanyl, clonazepam, trazadone, and amphetamines on more than
five occasions between January and September of 2018. See id.. Moreover,
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Appellant admitted to conspiring on multiple occasions to buy heroin from Mr.
King in Philadelphia with the intent to distribute it, and later conspired with
other individuals to sell the heroin in Norristown as part of a pattern of
racketeering. See id. at 10-13. Additionally, Appellant admitted to engaging
in a corrupt enterprise and dealing in the proceeds of this unlawful activity
with other individuals and organizing the purchase and sale of controlled
substances over the telephone. See id. at 9-13.
On this record, we agree with the Commonwealth, and conclude that
Appellant’s crimes do not merge for sentencing purposes. The record reveals
that each of Appellant’s crimes were separate criminal undertakings
constituting at least ten criminal acts consisting of five separate instances of
PWID, two separate conspiracies, and at least one instance of corrupt
organizations, dealing in proceeds of unlawful activities, and criminal use of a
communication facility. See N.T. Guilty Plea Hr’g, 10/8/19, at 9-14. Indeed,
Appellant obtained a list of customers from Mr. Bell and took over drug
distribution after Mr. Bell was incarcerated, and Appellant admitted he
engaged in the purchase of heroin and sold it to more than twenty
“customers.” Id. at 12-14. In sum, on this record, Appellant’s crimes
stemmed from separate criminal acts that occurred at different times and
places, involving different individuals, and did not arise from one criminal act,
therefore merger is not applicable. Further, the statutory elements of the
offenses for separate instances of PWID, conspiracy, corrupt organizations,
dealing in proceeds of unlawful activities, and criminal use of a communication
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facility are not included in each other, thereby merger is not appropriate. See
42 Pa.C.S. § 9765; Baldwin, 985 A.2d at 833, 835; Williams, 958 A.2d at
527; see also Lynch, 242 A.3d at 348-50; Cianci, 130 A.3d at 782.
For these reasons, we conclude that Appellant is due no relief.
Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2023
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