Com. v. Irizarry, A.

J-S28032-19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANDY IRIZARRY, :
:
Appellant : No. 228 MDA 2019
Appeal from the Judgment of Sentence Entered May 9, 2018
in the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0003091-2017
BEFORE: BOWES, J., MCLAUGHLIN, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED AUGUST 06, 2019
Andy Irizarry (Appellant) appeals nunc pro tunc from the judgment of
sentence imposed following his convictions for arson and criminal
conspiracy. Upon review, we affirm.
On December 10, 2016, police were dispatched to 444 South Prince
Street in Lancaster City for a burglar alarm. Upon arrival, Officer March
Gehron of the Lancaster City Bureau of Police observed “smoke billowing
from the windows and doors of a building occupied by Doctor Tire. [Officer]
Gehron also saw flames inside the building.” Trial Court Opinion,
10/11/2018 at 6 (citation omitted). Eventually, Sergeant Dustin Shireman,
a fire marshal with the Pennsylvania State Police, arrived at the scene to
investigate. Upon his arrival, Sergeant Shireman
*Retired Senior Judge assigned to the Superior Court.
J-S28032-19
determined that a set of windows was broken before the fire was
started, the origin of the fire was inside the building under the
windows, several burnt rags and a clear bottle were found at
that location, and there was an odor of gasoline. [Sergeant]
Shireman collected the rags and bottle, securing them in a metal
container. Later analysis by Albert Lattanzi, PSP forensic
scientist, determined the presence of gasoline on the submitted
items. According to [Sergeant] Shireman, the cause of the fire
was an intentionally set arson, where gasoline was used to fuel
an open flame on the rags.
Id. (citations omitted).
Through further investigation, police were able to compile a series of
surveillance videos that captured the arson on video.
These videos showed a Lexus parked behind a car wash across
the street from Doctor Tire and the beginning of the arson. When
he pieced the videos together, [Detective Adam] Dommel
determined he had the entire incident on video except for a
seven-minute period of time when the suspect vehicle left the
area and then returned to the scene.
Id. at 7 (citations omitted). Detective Dommel was able to fill in the seven-
minute gap by checking surveillance video from
nearby Turkey Hill gas station, which was located approximately
nine city blocks from Doctor Tire. Upon checking Turkey Hill
video during the seven-minute gap, the suspect Lexus vehicle
was shown parked in front of Pump 3. A male in a black
sweatshirt, black baseball hat, and cash in his hand was seen
inside the store pointing to a pump outside. That male then left
the store, walked over to the parked Lexus, retrieved a gas can
from the back hatch, returned with an item, placed it back into
the hatch, and entered the right rear passenger side door. The
vehicle then left the parking lot at 11:16 p.m., or a few minutes
later because [Dectective] Dommel believed the Turkey Hill
video was running slow.
The seven-minute gap ended at approximately 11:22 p.m.,
when the suspect vehicle[, occupied by four individuals,] is seen
returning to the area and parking in a lot behind the laundromat.
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The right rear passenger got out of the vehicle, and two persons
were seen walking to the rear of Doctor Tire where the fire was
set. Flashing light was then visible, which appeared to be
something burning, and two people headed back to the suspect
vehicle from the rear of Doctor Tire. As they were doing so, the
two subjects crossed in front of a vehicle that had just turned
from Prince Street onto Hazel Street, which [Detective] Dommel
believed was being driven by [a passing motorist]. The suspect
vehicle then left the scene.
***
Luis Martinez [] testified that he was the sales manager at
Doctor Tire since its inception five years ago. On December 10,
2016, Martinez closed the business [for the day]. Martinez then
returned to the store as a result of the fire, at which time he
provided police with video from the surveillance system.
According to Martinez, the video showed moving bodies, but he
could not make out any faces. The business is no longer in
existence as a result of the fire.
Martinez was good friends with Appellant, having known
him since the [1990s]. Several weeks before the fire, Martinez
saw Appellant at the store asking for tires. Appellant then
threatened another customer, at which time Martinez told
Appellant he would have to leave. Appellant cursed at Martinez
for not having his back, before apologizing to Martinez and
leaving. Police showed Martinez the video that had been
obtained from the Turkey Hill store, and Martinez immediately
recognized Appellant as the person in the video. In fact,
Appellant was wearing the same hoodie and hat in the video that
he was wearing when he was at Doctor Tire.
Id. at 8-9 (citations and footnotes omitted).
Based on the foregoing, Appellant was charged with arson and criminal
conspiracy. Eventually, Appellant proceeded to a jury trial. Following trial,
Appellant was convicted of both crimes, and on May 9, 2018, the trial court
sentenced Appellant to 27 months to 10 years’ incarceration on each count
and ordered the sentences to run consecutively to one another. Appellant
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timely filed a post-sentence motion to modify sentence, which the trial court
denied. Post-Sentence Motion, 5/16/2018. This appeal followed.1,2
On appeal, Appellant sets forth the following issue for our review:
“Was it an abuse of discretion to refuse to merge the sentences for [a]rson
and [c]onspiracy where both crimes arose from a single act?” Appellant’s
Brief at 5 (suggested answer omitted). Although presented as a single
claim, on appeal, it appears to this Court that Appellant is attempting to
raise a hybrid challenge to the legality and the discretionary aspects of his
sentence. Id. at 10. Specifically, Appellant contends (1) his arson and
conspiracy convictions should have merged for sentencing purposes, and (2)
running the sentences consecutively to one another was an abuse of
discretion. Id. (Appellant’s “aggregate sentence of 4½ to 20 years resulted
from two sentences being improperly run consecutive to one another; both
convictions were based upon the exact same criminal act/episode, and
should have been merged. The record demonstrates that the consecutive
sentence was imposed by the [trial c]ourt because [Appellant] continued to
1 On August 23, 2018, after denial of his post-sentences motions, Appellant
timely filed a notice of appeal. However, on October 22, 2018, this Court
issued an order dismissing Appellant’s appeal for failure to file a docketing
statement pursuant to Pa.R.A.P. 3517. On January 23, 2019, Appellant filed
a petition to appeal nunc pro tunc, which the trial court granted. Order,
1/28/2019.
2
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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assert that he was factually innocent of the arson charge[.] … The aggregate
sentence was therefore manifestly excessive, and thus unjust.”).
We address first Appellant’s challenge to the discretionary aspects of
his sentence. Before we reach the merits of this issue, we consider whether
Appellant has preserved this issue for appeal. “Where the trial court orders
an Appellant to file a concise statement of matters complained of on appeal
under Pa.R.A.P. 1925, any issue not contained in that statement is waived
on appeal.” Commonwealth v. Rolan, 964 A.2d 398, 409 (Pa. Super.
2008) (internal quotation marks and citations omitted).
In this case, Appellant’s concise statement of errors complained of on
appeal sets forth the following two issues:
1. Whether the evidence presented by the Commonwealth was
sufficient to support the [trial c]ourt’s finding of guilt for each
offense; where the Commonwealth’s evidence could not have
proved each and every element of each offense beyond a
reasonable doubt.[3]
2. Whether the trial court erred by not merging the offenses,
[a]rson and [c]onspiracy, for sentencing purposes, where the
crimes arise from a single act.
Concise Statement, 2/12/2019. It is clear that Appellant preserved properly
his merger claim. However, Appellant did not set forth any issue that
encompasses a challenge to the trial court’s exercise of discretion in
3
Appellant abandoned his sufficiency claim on appeal. See Appellant’s Brief
at 5, n.1 (“Having had the opportunity to review the trial transcript and [the
trial court’s 1925(a) s]tatement, the undersigned counsel has elected to
remove from this [b]rief the question regarding sufficiency of proof
presented at trial for conviction of [a]rson.”).
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imposing consecutive sentences. As noted supra, a claim that crimes should
merge for sentencing purposes, implicating the legality of a petitioner’s
sentence, is distinct from an issue challenging the court’s discretion in
fashioning a petitioner’s sentence.
Because Appellant failed to include a challenge to the discretionary
aspects of his sentence in his concise statement, we hold that he has waived
this issue. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”).
We now address Appellant’s merger claim. A claim that two crimes
should have merged for sentencing purposes implicates the legality of the
sentence. Commonwealth v. Brown, 159 A.3d 531, 532 (Pa. Super.
2017). Our standard of review for a challenge to the legality of a sentence is
de novo, and our scope of review is plenary. Id.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.
“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
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(Pa. 2009). Appellant argues that the crimes of arson and criminal
conspiracy to commit arson should have been merged for sentencing
purposes because the elements of arson are all included in the statutory
elements of criminal conspiracy, although for the purposes of this appeal,
Appellant focuses on the latter argument. Appellant’s Brief at 17-18.
Notably, “[i]t has long been the law of this Commonwealth that the
crime of criminal conspiracy does not merge with the completed offense
which was the object of the conspiracy. That is, the law has always
considered criminal conspiracy and the completed substantive offense to be
separate crimes.”4 Commonwealth v. Miller, 364 A.2d 886, 886-87 (Pa.
1976) (citations omitted). See also Commonwealth v. Chambers, 188
A.3d 400, 410 (“Once the conspiracy is established beyond a reasonable
doubt, a conspirator can be convicted of both the conspiracy and the
substantive offense that served as the illicit objective of the conspiracy.”).
Appellant concedes as much. See Appellant’s Brief at 18-19 (“As a
general rule in the Commonwealth, the crimes of conspiracy and the
completed underlying offenses do not merge.”). Nevertheless, Appellant
argues that his convictions should have merged because
4 Additionally, “[o]ur Supreme Court has held that the same facts may
support multiple convictions and separate sentences for each conviction
except in cases where the offenses are greater and lesser included offenses.”
Commonwealth v. Thomas, 879 A.2d 246, 263 (Pa. Super. 2005)
(internal quotation marks omitted).
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the arson subsection used to charge [Appellant, 18 Pa.C.S.]
§3301(c), permitted conviction for simply “counseling” another
to cause a fire. This subsection of arson and the
conspiracy/arson charge seems to present a different situation
than most convictions for a substantive offense and conspiracy
add-on charge. [S]ubsection [§3301(c)] is arguably an exact
replica of the conspiracy charge. That is, both sections are
expressly written by the legislature to punish the meeting of
minds between two or more individuals when the topic involves
an arson.
Id. at 19 (unnecessary capitalization omitted). The following statutes
govern arson and criminal conspiracy.
A person commits [arson endangering property,] a felony of the
second degree if he intentionally starts a fire or causes an
explosion, whether on his own property or that of another, or if
he aids, counsels, pays or agrees to pay another to cause a fire
or explosion, and if: (1) he commits the act with intent of
destroying or damaging a building or unoccupied structure of
another.
18 Pa.C.S. § 3301(c)(1).
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.
Upon review, we find Appellant’s merger argument without merit.
First, our case law has set forth firmly, without equivocation, that “a
conspiracy conviction does not merge for sentencing purposes with a
completed offense which was the objective of the conspiracy."
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Commonwealth v. Yates, 562 A.2d 908, 910 (Pa. Super. 1989).5
Moreover, we find the arson statute, which allows for a conviction upon the
finding that an individual “counselled” another, to be distinguishable from
the crime of criminal conspiracy, which requires a finding that one agreed
with another to commit a crime. Specifically, unlike counselling, which is
defined as providing “[a]dvice or assistance; opinion given as the result of
consultation[,]” Black’s Law Dictionary (10th ed. 2014), “[a]t the heart of
every conspiracy lies the common understanding or agreement between
the actors. Implicit in any conspiracy is proof ... that an accused agrees to
participate in the alleged criminal activity.” Commonwealth v.
Chambers, 188 A.3d 400, 410 (Pa. 2018) (quotation marks and citation
omitted; emphasis added). Thus, all of the elements of criminal conspiracy
are not encompassed in the crime of arson. Accordingly, in line with our
long-standing precedent, we find that the crimes of arson and conspiracy do
not merge. Thus, Appellant’s legality-of-the-sentence claim fails.
Accordingly, after a review of the briefs, record, and applicable case
law, we are not persuaded that Appellant’s issues warrant relief from this
Court.
5 Notably, Appellant did not cite any case law to support his novel argument.
See Appellant’s Brief at 19 (“The undersigned was not able to find a case
involving this exact situation.”).
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/6/2019
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