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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SUKORI L. BUTLER :
:
Appellant : No. 711 MDA 2020
Appeal from the Judgment of Sentence Entered March 25, 2020
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0001337-2019
BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY McCAFFERY, J.: FILED: MAY 11, 2021
Sukori L. Butler (Appellant) appeals from the judgment of sentence
entered in the Schuylkill County Court of Common Pleas, following his jury
convictions of two counts of simple assault and one count each of harassment,
strangulation, and disorderly conduct.1 Appellant argues his convictions of
simple assault should have merged with strangulation for sentencing
purposes. We conclude 42 Pa.C.S.A. § 9765 does not support merger of these
offenses, and thus affirm.
Appellant and Stephanie Torres (the Victim) were in a romantic
relationship. The trial court summarized the trial evidence as follows:
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 2701(a)(1), 2709(a)(1), 2718(a)(1), 5503(a)(1).
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September 17[,] 2018, [the Victim and Appellant] were in
an argument that left [the Victim] physically injured. [O]n
September 16th,[2 Appellant] had been accusing [the Victim] of
cheating on him. This continued into later in the day when
[Appellant] was not home and was sending [the Victim] text
messages calling her derogatory names. On his way back to the
apartment, [Appellant] asked [the Victim] to unlock the door[, but
the Victim] refused. At this point, [the Victim] called her friend
Linda Collins. Eventually, [Appellant] got into the house and went
up to [the Victim’s] bedroom and continued to yell at her.
After [Appellant] came into the bedroom, he started pulling
[the Victim] off the bed. Once [the Victim] was halfway off the
bed, [Appellant] got on top of her and started choking her. [The
Victim’s] ten-year old daughter, [N.T.], testified she saw
[Appellant choking the Victim] while [the Victim’s] body was half
on the bed and her legs were on the floor. Once [the Victim] was
on the floor, [Appellant] got back on top of [her] and began to
strangle her again. During this second time, [Appellant] ended up
scratching [the Victim] on her neck while she was trying to get
away from him. While [Appellant and the Victim] were struggling,
[Collins] started calling [Appellant’s] name from outside.
[The Victim] ran down to see [Collins] and the argument
continued in [Collins’] presence. [Appellant] pushed [the Victim]
against a door at one point, in which she hit her head against the
door. The argument continued outside as [the Victim] tried to get
away from [Appellant. Appellant] followed her, continued to call
her derogatory names while threatening her life, and punched her
in the face. While they were outside, [the Victim] was able to get
into [Collins’] car, but [Appellant] had followed and ended up in
the backseat. While in the car, [Appellant] grabbed [the Victim]
by her hair and pulled it back. [The Victim] was able to break
away and started running. While she was running, [Appellant]
came up behind [the Victim] and wrapped his one arm around her
neck, wrapped his other arm around her mouth, and again
threatened to kill her. [The Victim] testified that [when]
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2 It is unclear what time the argument between Appellant and the Victim
started on September 16, 2018. We note the victim’s daughter, N.T., testified
that it was “late” and she was “trying to go to sleep[.]” N.T. Jury Trial, 2/3/20,
at 97.
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[Appellant] did this, she could not breathe. While this was
happening, one of [Appellant’s] friends pulled up in a car and
stopped to see what was happening. At this moment, [Appellant]
released [the Victim] and got into his friend’s car.
The neighbor who lived across the street . . . Victoria
Kechula, testified that she heard people fighting and looked out to
see [the Victim, Collins, and Appellant. Kechula] heard [the
Victim] screaming that [Appellant] was going to kill her, take her
baby, and [Kechula] saw [the Victim and Appellant] scuffing.
Eventually, [Kechula] called the police and took in [the Victim’s]
children until the police arrived. [Pine Grove Police Officer Tyler]
Dissinger and his partner arrived on scene. Officer Dissinger
testified that he observed bruises, redness, and open scratches on
[the Victim’s] neck. He also observed what appeared to be an
injury above her eye and her [clothing’s] collar was stretched and
ripped.
Trial Ct. Op. 6/16/20, at 2-3. The Victim stated the incident “was done with”
by 3:17 a.m., when she took a photo of her injuries. N.T. Jury Trial, at 59.
Appellant was charged with two counts of simple assault and one count
each of strangulation, harassment, and disorderly conduct. The case
proceeded to a jury trial on February 3, 2020. The Commonwealth presented
the testimony of the Victim, her daughter N.T., the neighbor Kechula, and
Officer Dissinger, as summarized above. Collins testified, as a defense
witness, that she did not witness any “physical action” between the Victim and
Appellant. N.T. Jury Trial, at 123. Appellant did not testify or present any
additional evidence. The jury found Appellant guilty of all charges.
On March 25, 2020, the trial court sentenced Appellant to three to six
years’ incarceration for strangulation. It also imposed terms of 9 to 24
month’s incarceration for each count of simple assault, to be served
concurrently, and no further penalty on Appellant’s conviction of disorderly
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conduct. The court found Appellant’s harassment charge merged with his first
count of simple assault.
Appellant filed a timely post-sentence motion, claiming “the simple
assault convictions must merge with strangulation for sentencing purposes.”
Appellant’s Post-Sentence Motion, 4/3/20, at 3 (unpaginated). Before the trial
court ruled on the motion, Appellant filed a notice of appeal on April 21, 2020.
The following day, April 22nd, the trial court denied Appellant’s post-sentence
motion.3 Appellant timely complied with the trial court’s order directing him
to file a concise statement of matters complained of on appeal pursuant to Pa.
R.A.P. 1925(b).
Appellant raises two issues for our review:
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3 We decline to find Appellant’s notice of appeal, filed one day before the trial
court denied his post-sentence motion, was untimely. See Pa.R.A.P. 903(a);
(notice of appeal must be filed within 30 days of the entry of the order
appealed from); Pa.R.Crim.P. 720(A)(2)(a) (“If the defendant files a timely
post-sentence motion, the notice of appeal shall be filed . . . within 30 days
of the entry of the order deciding the motion.”). In Commonwealth v.
Cooper, 27 A.3d 994 (Pa. 2011), our Supreme Court held that a “snap” pro
se notice of appeal did not divest the trial court of jurisdiction to act upon a
subsequently filed, counseled, timely post-sentence motion, and instead, the
premature appeal should have been treated as if it were filed after the denial
of post-sentence motions in accordance with Pa.R.A.P. 905(a)(5).3 Cooper,
27 A.2d at 1008. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the
announcement of a determination but before the entry of an appealable order
shall be treated as filed after such entry and on the day thereof.”). In the
instant matter, the notice of appeal was filed by counsel while the post-
sentence motions were pending, making it premature. However, the trial
court denied the post- sentence motion on April 22, 2020. Thus, we conclude
the notice of appeal was timely filed in accordance with Pa.R.A.P. 905(a)(5).
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1. Did the court err in failing to merge the sentence for simple
assault with the sentence for strangulation?
2. Was the prosecution’s evidence insufficient to support a
conviction for strangulation?
Appellant’s Brief at 4.
In his first issue, Appellant argues the trial court erred when it did not
merge his sentences for simple assault, under 18 Pa.C.S. § 2701(a)(1), and
strangulation.4 Appellant’s Brief at 10. Appellant contends that “both the
strangulation and the simple assault charges are based upon the specific
allegations of [A]ppellant putting his hands around the neck and choking [the
Victim until she was] unable to breath[e].” Id. at 11. Appellant maintains
“[n]othing is required to prove strangulation beyond the allegations alleged
for the charge of simple assault in the criminal information.” Id. While
Appellant cites 42 Pa.C.S. § 9765 (discussed infra), he argues the criminal
complaint “clearly” states both the strangulation and simple assault arose
from the same act and “the complaint does not allege criminal acts delineating
the simple assault from the conduct that constituted strangulation.” Id. at
12.
Our standard of review on this matter is well settled:
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4 Appellant states the trial court sentenced him to “consecutive sentences on
strangulation and simple assault.” Appellant’s Brief at 11 (emphasis added).
However, in the sentencing order and at the sentencing hearing, the court
specified it sentenced Appellant to concurrent sentences on strangulation
and simple assault. N.T. Sentencing, 3/25/20, at 11; Sentencing Order,
3/25/20.
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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. Martinez, 153 A.3d 1025, 1029-30 (Pa. Super. 2016)
(citations omitted).
Section 9765, which governs merger of offenses, 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. § 9765.
Our Supreme Court has held that Section 9765 “prohibits the merger of
sentences unless a strict two-part test is met. First, the convictions must be
based on a single criminal act. Second, all of the statutory elements of one
of the offenses must be included in the statutory elements of the other.”
Commonwealth v. Wade, 33 A.3d 108, 116 (Pa. Super 2011). To determine
if the crimes arise from a single criminal act, we must look to the following:
[T]he question is not “whether there was a ‘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.”
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
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. . . constituted a single criminal act, with reference to elements
of the crime as charged by the Commonwealth.”)
Martinez, 153 A.3d at 1030-31 (some citations omitted).
Appellant was convicted of simple assault under the following
subsection:
(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[.]
See 18 Pa.C.S. § 2701(a)(1). Appellant was also convicted of strangulation
under the following subsection:
§ 2718. Strangulation
(a) Offense defined.— A person commits the offense of
strangulation if the person knowingly or intentionally impedes the
breathing or circulation of the blood of another person by:
(1) applying pressure to the throat or neck[.]
18 Pa.C.S. § 2718(a)(1).
First, we address whether the charges at issue arise from a single
criminal act. Upon review of the charging documents, we agree with the trial
court’s determination that the simple assault and strangulation charges were
based on separate acts. See Trial Ct. Op. at 6. The criminal information
stated Appellant committed the offense of strangulation when he “did
knowingly or intentionally impede the breathing [ ] of another person[.]”
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Criminal Information 8/26/19.5 However, the information stated Appellant
committed simple assault under Subsection 2701(a)(1) when he “cause[d]
bodily injury to” the Victim. Id. Furthermore, we note that while the criminal
complaint alleged Appellant’s “putting his hands around [the Victim’s]
neck[,] choking her[, and] causing her to not be able to breath[,]” established
both simple assault and strangulation, the complaint further averred Appellant
committed simple assault when he left “red marks and visible scratches” on
the Victim. Criminal Complaint 9/17/18, at 2. Officer Dissinger’s affidavit of
probable cause (APC) specified Appellant was “choking” the Victim after
dragging her off a bed in their shared home, “punched [the Victim] in her
face” after she ran outside to “her friend[’]s” vehicle, “grabbed [the Victim’s ]
hair” while she was inside the vehicle, and “grabbed [the Victim] by the face”
after she exited the vehicle and attempted to run down the street. APC
9/17/18, at 1-2. We thus reject Appellant’s argument that the charging
documents established only one criminal act. See Martinez, 153 A.3d at
1030-31; Wade, 33 A.3d at 116. See also Kimmel, 125 A.3d at 1277.
Additionally, Appellant has failed to address whether “all of the statutory
elements of one offense are included in the statutory elements of the other
offense” as required by the merger statute. See 42 Pa.C.S. § 9765. We
conclude they do not. Simple assault under Subsection 2701(a)(1) and
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5 The Criminal Information was filed on August 26, 2019. However, it is
unclear when it was prepared.
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strangulation each contain an element the other does not possess. Simple
assault includes “attempt[ing] to cause or intentionally, knowingly or
recklessly caus[ing] bodily injury to another,” whereas strangulation includes
“knowingly or intentionally imped[ing] the breathing or circulation of the
blood” and “applying pressure to the throat or neck[.]” See 18 Pa.C.S. §§
2701(a)(1), 2718(a)(1); 42 Pa.C.S. § 9765; Wade, 33 A.3d at 116.
Appellant’s second issue in his statement of questions involved is a
challenge to the sufficiency of evidence for his strangulation conviction.
Appellant’s Brief at 4. However, Appellant abandons this issue in the
argument section of his brief. See id. at 12 (“Counsel for [A]ppellant, upon
review of the existing case law, did not find any argument to support this
issue. Therefore, no argument will be offered.”). In any event, we note that
the trial court found the testimony of the Victim, witnesses, and Officer
Dissinger, establishing the elements of each crime, was credible. Trial Ct. Op.
at 7.
Because Appellant failed to meet the two-part merger test as outlined
in Section 9765 and offers no argument on his sufficiency claim, we conclude
no relief is due.
Judgement of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/11/2021
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