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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
REYNALDO MERCADO :
:
Appellant : No. 428 MDA 2021
Appeal from the Judgment of Sentence Entered November 19, 2020
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0004049-2018
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: AUGUST 29, 2022
Appellant, Reynaldo Mercado, appeals from a judgment of sentence
entered on November 19, 2020, as made final by the denial of his
post-sentence motions on March 19, 2021. In this direct appeal, Appellant's
counsel initially filed a petition for leave to withdraw and an accompanying
brief pursuant to Anders v. California, 386 U.S. 738 (1967) and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After independent
review, we identified a non-frivolous issue pertaining to the legality of
Appellant’s consecutive sentences imposed upon two conspiracy convictions.
Accordingly, we denied counsel's petition to withdraw and remanded this
matter to afford counsel the opportunity to file an advocate’s brief. Counsel
for both parties, as advocates, have now briefed the issues raised on appeal
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* Retired Senior Judge assigned to the Superior Court.
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and the case is ripe for merits review. After careful consideration, we affirm
Appellant’s convictions, vacate his sentence, and remand for resentencing.
Appellant’s convictions arose out of the fatal stabbing and robbery of
Fred Boote, together with a fire at Boote’s Luzerne County residence, which
occurred during the early morning hours of September 14, 2018. At the
conclusion of trial on November 18, 2020, a jury found Appellant guilty of
first-degree murder, second-degree murder, third-degree murder, burglary,
robbery, criminal conspiracy to commit robbery, theft by unlawful taking or
disposition, arson, criminal conspiracy to commit arson, abuse of a corpse,
and tampering with or fabricating physical evidence.1 On November 19, 2020,
the court imposed an aggregate sentence of life imprisonment plus 32 to 64
years’ incarceration.2
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118 Pa.C.S.A. §§ 2502(a), 2502(b), 2502(c), 3502(a)(1)(i), 3701(a)(1)(i),
903(a) and 3701(a)(1)(i), 3921(a), 3301(a)(1)(ii), 903(a) and 3301(a)(1)(ii),
5510, and 4910(1), respectively.
Louisa Reyes, a co-defendant, pled guilty on September 10, 2020, and
testified against Appellant at his trial.
2 For sentencing purposes, the trial court merged Appellant’s second- and
third-degree murder convictions with his conviction for first-degree murder.
In addition, the court imposed consecutive sentences of 72 to 144 months for
burglary, 96 to 192 months for robbery, 72 to 144 months for criminal
conspiracy to commit robbery, 72 to 144 months for arson, 60 to 120 months
for criminal conspiracy to commit arson, 12 to 24 months for abuse of corpse,
and a concurrent term of 6 to 12 months for tampering with or fabricating
physical evidence. The court imposed a $100.00 fine for theft by unlawful
taking or disposition. The sentences imposed for Appellant’s non-homicide
offenses fall within the standard range of the sentencing guidelines. Appellant
(Footnote Continued Next Page)
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Appellant filed a post-sentence motion on November 24, 2020. That
motion was denied on March 19, 2021. Appellant then filed his notice of
appeal on April 7, 2021. The trial court directed Appellant to file a concise
statement pursuant to Pa.R.A.P. 1925(b) and Appellant timely complied with
the court’s order on April 27, 2021. The trial court issued its Rule 1925(a)
opinion on June 4, 2021.
Appellant presents the following claims in his brief to this Court.
Whether the Commonwealth failed to prove by sufficient evidence
that [] Appellant committed the crimes for which he was
convicted[?]
Whether the robbery of the victim and the burning of his body and
residence were the object of a single agreement or part of a
continuous conspiratorial relationship[?]
Whether the trial court abused its discretion [in] sentencing
[Appellant?]
Appellant’s Brief at 1.3
In his first claim, Appellant argues that the Commonwealth failed to
adduce sufficient evidence to support his convictions. Our review of this issue
is governed by the following standards.
A challenge to the sufficiency of the evidence is a question of law,
subject to plenary review. When reviewing a sufficiency of the
evidence claim, the appellate court must review all of the evidence
and all reasonable inferences drawn therefrom in the light most
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received credit for serving 796 days of incarceration prior to sentencing. See
Trial Court Opinion, 6/4/21, at 3 (unpaginated).
3 We have re-ordered Appellant’s claim to facilitate our analysis and
discussion.
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favorable to the Commonwealth, as the verdict winner. Evidence
will be deemed to support the verdict when it establishes each
element of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt. The Commonwealth need
not preclude every possibility of innocence or establish the
defendant's guilt to a mathematical certainty. Finally, the trier of
fact while passing upon the credibility of witnesses and the weight
of the evidence produced, is free to believe all, part, or none of
the evidence.
Commonwealth v. Levy, 83 A.3d 457, 461 (Pa. Super. 2013).
The certified record confirms that the Commonwealth introduced
sufficient evidence to prove each element of every charged offense beyond a
reasonable doubt.4 In challenging the sufficiency of the evidence, Appellant
asserts, in conclusory fashion and with minimal development, that: the
Commonwealth failed to prove the requisite mens rea (or disprove
justification) to sustain convictions for Appellant’s homicide-related offenses
(Appellant’s Brief at 7-10); the Commonwealth offered insufficient proof of
burglary because Appellant traveled to the victim’s home with no intention to
commit a crime (Appellant’s Brief at 10); the Commonwealth failed to prove
robbery because Appellant assaulted the victim to protect Reyes, not to
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4 Arguably, Appellant waived appellate review of his sufficiency challenge in
failing to specify the element or elements upon which the evidence was
insufficient. See Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super.
2015) (“to preserve a claim that the evidence was insufficient, then [a]
1925(b) statement needs to specify the element or elements upon which the
evidence was insufficient”) (quotation omitted); Trial Court Opinion, 6/4/21,
at 4 (unpaginated) (“[n]owhere in [Appellant’s Rule] 1925(b) statement does
he specify any element … that was not established beyond a reasonable
doubt”).
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commit a theft (Appellant’s Brief at 11); the Commonwealth failed to prove
conspiracy to commit robbery because there was no proof of a plan or
agreement to remove the victim’s property (Appellant’s Brief at 11); the
Commonwealth did not prove theft by unlawful taking since Reyes took the
victim’s property (Appellant’s Brief at 11); the Commonwealth did not prove
arson or conspiracy to commit arson since Appellant did not intend to burn
the victim’s residence and there was no agreement between Appellant and
Reyes to commit arson (Appellant’s Brief at 12); the Commonwealth did not
prove abuse of a corpse since there was no proof that Appellant treated a
corpse in a manner he knew would cause outrage (Appellant’s Brief at 12);
and, the Commonwealth failed to prove evidence tampering because there
was no proof Appellant knew he was the subject of a police investigation
(Appellant’s Brief at 12). With these contentions, Appellant views the
evidence in the light most favorable to the defense and asks this Court to
re-weigh the evidence, both of which are forbidden under our standard of
review. Hence, Appellant is not entitled to relief on his opening claim.
In his second claim, Appellant contends that, since there was only one
conspiracy, the trial court erred in imposing consecutive sentences on
Appellant’s convictions for criminal conspiracy to commit robbery and criminal
conspiracy to commit arson. The Commonwealth defends the trial court’s
sentences, asserting that, while Appellant and Reyes initially contemplated an
assault upon the victim, they did not initially plan to burn his residence, as
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evidenced by their failure to properly prepare and equip themselves for that
task. See Commonwealth’s Brief at 36.
Here, the jury found Appellant guilty of criminal conspiracy to commit
robbery and criminal conspiracy to commit arson. At sentencing, the trial
court imposed separate punishments for each conspiracy conviction.
The conspiracy statute provides that, “[i]f a person conspires to commit
a number of crimes, he is guilty of only one conspiracy so long as such multiple
crimes are the object of the same agreement or [a] continuous conspiratorial
relationship.” 18 Pa.C.S.A. § 903(c). In determining whether a particular case
involves one or more conspiracies, we consider several factors.
The factors most commonly considered in a totality of the
circumstances analysis of the single vs. multiple conspiracies issue
... are: the number of overt acts in common; the overlap of
personnel; the time period during which the alleged acts took
place; the similarity in methods of operation; the locations in
which the alleged acts took place; the extent to which the
purported conspiracies share a common objective; and, the
degree to which interdependence is needed for the overall
operation to succeed.
Commonwealth v. Savage, 566 A.2d 272, 278 (Pa. Super. 1989). If a
defendant establishes that multiple crimes were the object of the same
agreement or a continuous conspiratorial relationship, he cannot be punished
separately for multiple conspiracy convictions since multiple sentences under
such circumstances are precluded by statute. See Commonwealth v. Davis,
704 A.2d 650, 654-655 (Pa. Super. 1997), appeal denied, 719 A.2d 744 (Pa.
1998), cert. denied, 525 U.S. 1026 (1998).
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After careful consideration of the factors identified in Savage, supra,
we conclude that, while the evidence introduced at trial established beyond a
reasonable doubt that Appellant conspired with Reyes to commit robbery and
arson, Appellant may be sentenced for only one conspiracy since both offenses
were the object of a continuous conspiratorial relationship. Although the overt
acts and methods employed to carry out the robbery and arson differ, it is
evident that the balance of the factors listed in Savage weigh heavily in favor
of finding a continuous conspiratorial relationship. Both the robbery of the
victim and the burning of his home occurred at the same time and place and
were committed by the same individuals who acted in concert. Moreover, the
robbery and the arson were highly interdependent and part of a continuing
and logically related objective: the commission of a violent theft followed by
an effort to conceal and destroy evidence of multiple crimes.5 Thus, the trial
court erred in imposing consecutive sentences for both conspiracy to commit
robbery and conspiracy to commit arson.
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5 The conclusions of the trial court in assessing Appellant’s sufficiency
challenge support our determination. In finding that sufficient evidence
supported Appellant’s conviction for conspiracy to commit robbery, the trial
court observed that Appellant and Reyes agreed to rob the victim by taking or
exercising control over his personal property and that the victim was killed
during the theft. Trial Court Opinion, 6/4/21, at 6-7 (unpaginated). In
addition, the court found sufficient evidence to support Appellant’s conviction
for conspiracy to commit arson because, shortly after the theft and the killing
occurred, Appellant and Reyes agreed to use gasoline to burn the victim’s
body and his residence. Id.
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We turn now to consider Appellant’s remedy. “[I]n instances where
consecutive sentences are imposed for inchoate offenses of equal grading,6
we have determined it prudent to vacate and remand, leaving it to the
sentencing court to decide which one of the [ ] inchoate convictions to let
stand [for sentencing purposes].” Commonwealth v. Kirkland, 2019 WL
3064848, *6 (Pa. Super. Jul. 12, 2019) (unpublished memorandum) (footnote
in original) (internal quotation omitted); see also Commonwealth v.
Kornegay, 2019 WL 4274044, *6 (Pa. Super. Sep. 10, 2019) (unpublished
memorandum) (vacating all sentences and remanding for resentencing where
single continuing conspiracy was established and convictions for conspiracy to
commit criminal trespass and conspiracy to commit aggravated assault should
have merged for sentencing purposes).7 Since our holding has disturbed the
overall sentencing scheme adopted by the trial court, we shall vacate
Appellant’s sentences and remand this matter for resentencing.
In view of our decision to vacate Appellant’s sentences in their entirety,
we need not consider Appellant’s final claim, which raises a challenge to the
discretionary aspects of his punishment.
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6 See 18 Pa.C.S.A. § 905 (“[A]ttempt, solicitation and conspiracy are crimes
of the same grade and degree as the most serious offense which is attempted
or solicited or is an object of the conspiracy.”).
7 Effective May 1, 2019, any memorandum decision of this Court may be cited
for its persuasive value. See Pa.R.A.P. 126(b)(2).
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Convictions affirmed. Sentences vacated. Case remanded for
resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/29/2022
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