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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID DALTON GARNER,
Appellant No. 288 MDA 2014
Appeal from the Judgment of Sentence of July 11, 2012
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000061-2011
BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 07, 2015
Appellant, David Dalton Garner, appeals from the judgment of
sentence entered on July 11, 2012, as made final by the entry of an order
denying post-sentence motions on August 30, 2012, following his jury trial
convictions for four counts of kidnapping, two counts each of unlawful
restraint, robbery, and theft by unlawful taking, and one count each of
attempted aggravated assault and simple assault by physical menace.1
Upon review, we affirm.
The facts of this case, as aptly summarized by the trial court, are as
follows:
On December 10, 2010, at approximately 6:15 p.m.,
Trooper Aaron Martin was called to investigate an attempted
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18 Pa.C.S.A. §§ 2901, 2902, 3701, 3921, 901, and 2701, respectively.
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homicide and robbery in St. Thomas Township, Franklin
County, Pennsylvania. Trooper Martin proceeded to the
emergency room of Chambersburg Hospital, where he met
with the victims[,] Micah Eugene McGowan and Mary Eireen
McGowan. He observed ligature marks on Micah’s neck, a
stab wound on the left side of his head, and a laceration on
the back of his head, along with swelling and bruising on his
face.
The incident occurred earlier that day. [Appellant] had
just been released on parole earlier that morning. Micah
stated that [Appellant] had knocked on his front door at
2:30 p.m. [Appellant’s] girlfriend, Heather Elaine Johnson
drove him there and dropped him off. [Appellant] was an
old friend who Micah had not seen in almost nine months.
Micah invited [Appellant] inside and offered him a glass of
water, after which they proceeded to Micah’s room. They
watched television and Micah went to his desk to work. At
that point, [Appellant] struck Micah in the back of his head
with a bathroom scale. Micah then fled downstairs but was
chased by [Appellant].
[Appellant] brought Micah back upstairs to his room and
proceeded to stab Micah on the side of the head with a knife
he brought. Micah was lying face down on the floor and
[Appellant] had his hands tied behind his back. [Appellant]
then put a plastic bag over Micah’s head. Micah was unable
to breathe and bit a []hole in the bag. [Appellant] then
slipped a tie from a bathrobe around Micah’s neck,
beginning to strangle him. [Appellant] had his knees on
Micah’s back as he pulled the bathrobe tie, asking where
Micah’s valuables were. Micah told [Appellant] the location
of his keys and wallet, at which time [Appellant] took Micah
to the living room downstairs. It was at this point that
Micah’s mother, Mary McGowan, came home.
Mary arrived home at approximately 4:00 p.m. She
had been visiting her husband at Hershey Medical Center.
As Mary came through the back door, she heard Micah yell
“Mom, run!” [Appellant] then ran at her with a knife, telling
her to shut up or he would hurt her. [Appellant] had Mary
get on the floor in the kitchen face down. Mary asked
[Appellant] what he was doing, to which he replied that he
owed some people money. Mary indicated that she had
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money in her purse. [Appellant] removed $500[.00] cash
and credit cards from her wallet and her purse. Mary asked
if [Appellant] was going to kill her and her son, to which
[Appellant] replied in the negative but he would not allow
her to check on Micah. Then [Appellant] tied Mary’s hands
behind her back. Because Mary’s shoulder hurt, he then
tied her hands in the front and had her sit down in front of
the [refrigerator]. [Appellant] also asked if there were any
guns in the house. Mary indicated that they had “long
guns,” but lied and said they had no pistols. [Appellant] did
not take any guns.
[Appellant] told Mary to tell the police that they had
been robbed by black men. [Appellant] told her that he
owed $50,000.00 to some “bad men,” and if the police got
involved the men would harm him and her family. It was at
that point that Mary asked again to help her son, Micah.
She told [Appellant] that he needed to go to a hospital.
[Appellant] indicated that he would take him to
McConnellsburg, but Mary stated he should go to
Chambersburg. [Appellant] untied Mary and allowed her to
pull the car around the back of the house. He then untied
Micah and helped Mary get him into the car. [Appellant] got
into another car owned by Mary and followed her as she left
with Micah [to] drive him to Chambersburg Hospital.
[Appellant] was arrested and charged[, inter alia,] with the
above listed offenses.
Trial Court Opinion, 4/24/2014, at 4-5.
On May 10, 2012, a jury convicted Appellant of the aforementioned
crimes. On July 11, 2012, the trial court sentenced Appellant to an
aggregate term of incarceration of 37½ to 84 years of incarceration.
Appellant filed a post-sentence motion on July 23, 2012, seeking
reconsideration of his sentence. By order entered on August 30, 2012, the
trial court denied relief. Appellant did not appeal. On January, 16, 2014,
the trial court reinstated Appellant’s direct appeal rights nunc pro tunc, after
Appellant filed a pro se petition pursuant to the Post Conviction Relief Act
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(PCRA), 42 Pa.C.S.A. §§ 9541-9546, and appointed counsel filed an
amended PCRA petition. This timely appeal followed.2
On appeal, Appellant presents one issue for our review:
Whether the trial court erred as a matter of law by refusing
to merge four convictions of kidnapping into two sentences
when there were only two victims and all of the convictions
arise from a single criminal act?
Appellant’s Brief at 4.
Appellant argues that the trial court erred as a matter of law by not
merging his four kidnapping convictions into two sentences, one sentence for
each victim. Id. at 7-9. More specifically, in sum, Appellant contends:
[Appellant] was convicted of kidnapping both victims
under 42 Pa.C.S. § 2901(a)(2) and § 2901(a)(3).
Kidnapping, under 18 Pa.C.S. § 2901, requires a person to
‘unlawfully remove[] another a substantial distance under
the circumstances from the place where he is found, or if he
unlawfully confines another for a substantial period in a
place of isolation, with any of the following intent: […] (2)
to facilitate commission of any felony or flight thereafter;
(3) to inflict bodily injury on or terrorize the victim or
another.’
While [Appellant] may have had differing intentions from
kidnapping the victims, it is clear that there was only one
occurrence of kidnapping of each respective victim. There
were not separate incidences of kidnapping for differing
purposes, but one incident of kidnapping each victim while
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2
Appellant filed a notice of appeal on February 12, 2014. The same day,
the trial court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
April 24, 2014.
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there may have been different purposes for perpetrating the
kidnapping. While it is clear that the jury found [Appellant]
had the intent to confine the McGowans for the purposes of
facilitating the commission of a felony, and to inflict bodily
injury or terrorize, it was one crime committed against each
respective victim.
This is a case of alternative theories of criminal
culpability, for the same crime, in which the jury found
[Appellant] to be guilty of both states of mind, but it was
clearly only one volitional act. Essentially, the crime of
kidnapping has two elements, 1) the act of unlawfully
confining or moving the victim, and 2) intent to do so for
one of four delineated unlawful purposes. Following the
logic of the trial court’s interpretation of [42 Pa.C.S.A.]
§ 9765, [Appellant’s] actions are the equivalent as if he
would have kidnapped the McGowan[s] for one purpose, left
the residence, then returned at a different time and
kidnapped them again for another purpose delineated under
§ 2901. That is clearly not what occurred in this case, and
it would be inherently unfair to punish [Appellant] as if it
were the case.
For that reason, the separate convictions under
§ 2901(2) and (3) should have been merged for each
respective victim, as they were differing theories of intent
for the same volitional act, and thus constituted only one
crime, not two distinct criminal actions arising out of
separate sets [of] factual circumstances.
Id. at 8-9.
“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.
Nero, 58 A.3d 802, 806 (Pa. Super. 2012) (citation omitted). “An illegal
sentence must be vacated. In evaluating a trial court's application of a
statute, our standard of review is plenary and is limited to determining
whether the trial court committed an error of law.” Id. (citation omitted).
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Merger of sentences is governed by 42 Pa.C.S.A. § 9765, 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.
Our Supreme Court determined that
the plain language of Section 9765 reveals a legislative
intent to preclude the courts of this Commonwealth from
merging sentences for two offenses that are based on a
single criminal act unless all of the statutory elements of
one of the offenses are included in the statutory elements of
the other. Our Supreme Court held that when each offense
contains an element the other does not, merger is
inappropriate.
Nero, 58 A.3d at 806 (citations, quotations, and brackets omitted).
The jury convicted Appellant of two kidnapping charges with respect to
each victim. The legislature has defined those two crimes as follows:
[A] person is guilty of kidnapping if he unlawfully removes
another a substantial distance under the circumstances
from the place where he is found, or if he unlawfully
confines another for a substantial period in a place of
isolation, with any of the following intentions:
* * *
(2) To facilitate commission of any felony or flight
thereafter.
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(3) To inflict bodily injury on or to terrorize the victim or
another.
* * *
18 Pa.C.S.A. § 2901(a)(2) and (3).
Initially, we note that, to the extent that Appellant argues he
committed “one crime […] against each respective victim[,]” the jury found
otherwise. We also note that Appellant did not raise a challenge to the
sufficiency of the evidence in his Pa.R.A.P. 1925(b) concise statement.
Hence, Appellant has waived any challenge to the sufficiency of the evidence
introduced in support of his four kidnapping convictions. See
Commonwealth v. Berry, 877 A.2d 479, 485 (Pa. Super. 2005) (holding
issues which are not raised in a concise statement of matters complained of
on appeal under Pa.R.A.P. 1925 are waived on appeal).
Regarding the merger of sentences, in this case, there is no dispute
that the crimes arose from a single criminal act. However, upon review of
Subsections (a)(2) and (a)(3) of the kidnapping statute, each offense
contains an element the other does not. The criminal intent for kidnapping
under Subsection (a)(2) is to “facilitate a felony or flight thereafter.”
Whereas, the criminal intent for kidnapping under Subsection (a)(3) is to
“inflict bodily harm or to terrorize the victim.” Both Subsections have a
statutory element that the other does not. Moreover, this Court has
previously refused to merge sentences for two crimes defined under two
different sections of the aggravated assault statute. See Commonwealth
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v. Rhoades, 8 A.3d 912, 918 (Pa. Super. 2010). Hence, we discern no
error of law in denying Appellant relief on his merger claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/7/2015
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