J-S74044-16
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DAVID BRACETTY
Appellant : No. 2655 EDA 2015
Appeal from the Judgment of Sentence August 21, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP- 51 -CR- 0012080 -2014
BEFORE: OTT, RANSOM, JJ., STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED NOVEMBER 08, 2016
David Bracetty appeals from the August 21, 2015 judgement of
sentence imposed following a non -jury trial finding him guilty of robbery,
theft by unlawful taking, receiving stolen property and simple assault. 1 The
trial court imposed a sentence of two and one -half to five years'
incarceration, followed by two years' probation for robbery to run concurrent
with two five -year terms of probation imposed for theft by unlawful taking
and receiving stolen property. We affirm in part and vacate in part.
We briefly summarize the relevant facts and procedural history as
follows. On August 8, 2014, around 6:00 p.m., Appellant's ex- girlfriend
( "the Victim ") was standing on the corner with their three -year -old daughter
and a friend. See Notes of Testimony, 5/29/2015, at 7 -8 ( "N.T. ").
1 Respectively, 18 Pa.C.S. §§ 3701(a)(1)(iv), 3921(a), 3925(a), 2701(a).
*Former Justice specially assigned to the Superior Court.
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Appellant approached the Victim and did not want the Victim's friend to go
into the apartment. See N.T. at 10. The Victim was on her cellphone at the
time. See id. at 7 -8. Appellant "became belligerent and started grabbing at
[the Victim's cellphone]." Id. at 8, 21. Appellant "hit the Victim in the face
with the [electronic] tablet he was holding and continued to grab at her
phone." Trial Ct. Op., 03/22/2016, at 2; N.T. at 7 -9, 20. The Victim hung
up her call and proceeded to dial 911. See Trial Ct. Op., 03/22/2016, at 2;
N.T. at 10, 21. As the Victim was on the phone with the police, Appellant
"eventually overpowered her and took her cellphone." Trial Ct. Op.,
03/22/2016, at 3. Thereafter, according to the Victim, she lay on the
ground in a fetal position, and Appellant kicked her in the stomach two or
three times. See Trial Ct. Op., 03/22/2016, at 3; N.T. at 11.
Around 7:34 p.m., the Victim provided an "informative" statement to
Officer Silva, who prepared a domestic violence report to document the
incident. See N.T. at 24, 27 -28, 29 -32; Official Domestic Violence Rpt.,
8/8/14. The report indicates that the Victim did not report any specific
injuries and that she did not have any "visible injury" at that time. Id. at
33.
The Victim's mother testified that Appellant took two bricks and broke
her car and house windows between 6:00 and 7:00 p.m. on the same
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evening. See id. at 38 -39, 47.2 Around 9:00 p.m., Officer Semet received
a call about "a person with a gun" in the mother's neighborhood. Id. at 54.
When he arrived, the mother approached the Officer and reported Appellant
for breaking the windows. Id. at 53. Officer Semet located Appellant two
blocks away from the mother's house and placed him under arrest. Id. at
55. When searched, Appellant did not have the Victim's cellphone. Id. at
55 -56. "The Victim never recovered her cellphone." Trial Ct. Op.,
3/22/2016, at 3.
Around 12:15 a.m., on August 9, 2014, Detective King interviewed the
Victim, at which time he observed a bite mark on the Victim's breast, as well
as scrapes and bruises on her feet and arms, apparently suffered during the
earlier incident with Appellant. See id. at 56 -60.3
According to Appellant, the Victim embellished her story. He testified
that he had moved out of Victim's apartment four days before the incident
and that he approached the Victim because he wanted to go to the store
with his three -year -old daughter. Id. at 78, 83 -84. The trial judge,
however, found the Victim's story more credible. N.T. at 85. Appellant was
2 According to the mother, Appellant "was staying with [the Victim] in the
apartment but they were fighting all of the time." N.T. at 45. Despite
Appellant's objection based on inconsistencies in the mother's story, the trial
judge allowed the testimony. See id. at 48.
3 Contrary to his normal practice, Detective King did not photograph the
Victim's injuries, nor did he record his observations in his report. See id. at
57, 59.
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convicted of robbery, theft by unlawful taking, receiving stolen property, and
simple assault. Sentencing occurred on August 21, 2015.
On August 28, 2015, Appellant pro se filed an appeal from the
judgment of sentence without consulting counsel. Unaware of the appeal,
trial counsel filed a motion for reconsideration of sentence on August 31,
2015.
On October 30, 2015, Appellant timely filed a court -ordered Pa.R.A.P.
1925(b) statement, challenging the sufficiency and weight of the evidence.
On January 7, 2016, the trial court denied Appellant's motion for
reconsideration of sentence. See Trial Ct. Order, 1/7/2016 (citing
Pa.R.Crim.P. 720(B)(3)(c) (denying post- sentence motion by operation of
law after one hundred and twenty days)).4
In this Court, Appellant filed an application to quash the pending, pro
se appeal and remand to preserve sentencing issues. See Appellant's
Application for Remand, 1/12/2016. This Court denied the petition without
prejudice as to Appellant's right to raise additional issues in a supplemental
4 We accept his appeal as properly filed on January 7, 2016. See
Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011). ( "The merely
premature pro se appeal did not divest the trial court of jurisdiction to act
upon the timely post- sentence motion later filed by appellee's own counsel
in accordance with Criminal Rule 720(A). "). "Under the circumstances,
where the proper, counseled appeal was quashed administratively, the
subsequently- assigned Superior Court panel should have treated the
premature appeal as if it had been filed after denial of the post- sentence
motion in accordance with Pa.R.A.P. 905(a)(5)." Id. at 1008.
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Pa.R.A.P. 1925(b) statement. See Sup. Ct. Order, 2655 EDA 2015,
2/3/2016. Subsequently, Appellant filed an amended Pa.R.A.P. 1925(b)
statement, further preserving a challenge to discretionary aspects of his
sentence. The trial court filed a responsive opinion on March 22, 2016.5
Appellant contends that the trial court should not have imposed
separate sentences on the theft and robbery charges because they arose out
of the same incident and because the theft charges should have merged with
robbery. See Appellant's Brief at 8 -9. Specifically, Appellant raises the
following issue:
Did the trial court err when it failed to merge the robbery and
theft convictions for purposes of sentencing and thus the
sentences imposed on the theft convictions are illegal and must
be vacated?
Appellant's brief at 2.
"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.
Cianci, 130 A.3d 780, 782 (Pa. Super. 2015) (quoting Commonwealth v.
Quintua, 56 A.3d 399, 400 (Pa. Super. 2012), appeal denied, 70 A.3d 810
(Pa. 2013) (citation omitted)). "[W]here a case requires a correction of a
sentence, this [C]ourt has the option of either remanding for resentencing,
5Appellant has abandoned the issues preserved in his amended Pa.R.A.P.
1925(b) statement.
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or amending the sentence directly." Commonwealth v. Walls, 449 A.2d
690, 696 (Pa. Super. 1982).
We discern two errors in Appellant's sentence. First, "the statutory
definitions of the crimes of theft and receiving render it logically impossible
that one person be both the thief and receiver of the same item[.]"
Commonwealth v. Tesse/, 500 A.2d 144, 151 (Pa. Super. 1985) (citing
Commonwealth v. Simmons, 36 A.2d 624, 631 (Pa. Super. 1975)). A
person may be charged with violating Sections 3921(a) and 3925(a) based
on a single criminal act, however, "a judgment of sentence can only be
imposed on one or the other." Simmons, 336 A.2d at 631; see 18 Pa.C.S.
§§ 3921(a), 3925(a).6
Here, the trial court imposed concurrent, five -year terms of probation
for theft by unlawful taking and receiving stolen property.7 Based on the
facts of this case, it is clear that Appellant took unlawful control of the
6 Theft by unlawful taking occurs when the accused "takes, or exercises
unlawful control over, movable property of another with intent to deprive
him thereof." 18 Pa.C.S. § 3921(a). Receiving stolen property occurs when
a person "intentionally receives, retains, or disposes of moveable property of
another knowing that it has been stolen." Id. at § 3925 (defining
"receiving" as acquiring possession).
7In support of the theft by unlawful taking charge, the trial court states "it is
absolutely clear from Victim's testimony that Appellant unlawfully took her
cell phone without her permission." Trial Ct. Op., 3/22/2016, at 6. In
support of the receiving stolen property charge, the trial court states "it is
absolutely clear that Appellant received and retained the Victim's cell phone
without intent to return it to her and he had knowledge that the cell phone
was stolen." Id. at 5 -6.
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Victim's cellphone. However, the fact that Appellant stole the phone
precludes the imposition of a sentence for the crime of receiving stolen
property. See Simmons, 336 A.2d at 631; Tessel, 500 A.2d at 151.
Accordingly, the trial court erred and we vacate that the portion of
Appellant's sentence imposed for receiving stolen property.
Second, Appellant's merger claim has merit. To determine whether
convictions merge for sentencing purposes, we apply the following test:
"merger is appropriate only when two distinct criteria are satisfied: (1) the
crimes arise from a single criminal act; and (2) all of the statutory elements
of one of the offenses are included within the statutory elements of the
other." Commonwealth v. Jenkins, 96 A.3d 1055, 1056 (Pa. Super.
2014) (citing 42 Pa.C.S. § 9765); Commonwealth v. Baldwin, 985 A.2d
830, 833 (Pa. 2009); Commonwealth v. Payne, 868 A.2d 1257, 1263 (Pa.
Super. 2005). If merger is appropriate under the elements based approach,
the higher -graded offense subsumes the lower- graded offense for sentencing
purposes. See Cianci, 130 A.3d at 782; Commonwealth v. Coppedge,
984 A.2d 562, 564 (Pa. Super. 2009) (citing 42 Pa.C.S.A. § 9765).
Here, the trial court addressed the sufficiency of evidence regarding
the theft in the following manner:
In review of the evidence, it is absolutely clear from [the]
Victim's testimony that Appellant unlawfully took her cell phone
without permission. He forcibly took the phone from her during
a physical altercation. The Victim never had the phone returned
to her.
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Trial Ct. Op. at 6. Regarding the robbery, the trial court noted:
In review of the evidence, it is absolutely clear that Appellant in
the course of committing a theft, inflicted bodily injury on the
Victim and physically removed her phone by force. The Victim
testified that during the altercation with ... Appellant, ... Appellant
proceeded to hit the Victim with a tablet while he was grabbing
for her phone.
Id. at 5 (discussing, thereafter, additional evidence supporting Appellant's
separate conviction for simple assault). Based upon the trial court's
description of the evidence sufficient to convict Appellant of these two
crimes, we conclude that these crimes arise from a single criminal act, thus
satisfying the first criterion of the merger test. Jenkins, 96 A.3d at 1056.
In our view, the elements -based criterion of the merger test is also
satisfied. To satisfy this criterion, we must "focus[] solely on the elements
of the offenses for which a criminal defendant has been convicted." Id. at
1058. Here, Appellant was convicted of robbery, graded as a felony of the
second degree.
A person is guilty of robbery if, in the course of committing a
theft, he ... inflicts bodily injury upon another or threatens
another with or intentionally puts him in fear of immediate bodily
injury.
18 Pa.C.S. § 3701(a)(1)(iv) (emphasis added); see Cianci, 130 A.3d at 782
( "relevant question in merger analysis now is whether person can commit
one crime without also committing other crime and vice -versa, regardless of
whether crimes arose from same set of facts. "). Appellant was also
convicted of theft by unlawful taking, graded as a first -degree misdemeanor.
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A person is guilty of theft if he unlawfully takes, or exercises
unlawful control over, movable property of another with intent to
deprive him thereof.
Id. at § 3921(a). We conclude that the statutory elements of "theft by
unlawful taking," as defined in Section 3921(a), are necessary to establish
the relevant statutory element of robbery, i.e., "in the course of committing
a theft." 18 Pa.C.S. § 3701(a)(1)(iv).
For these reasons, Appellant's conviction for theft by unlawful taking
must merge for sentencing purposes into his conviction for robbery.
Accordingly, we vacate that portion of Appellant's sentence imposed for theft
by unlawful taking.8
Judgment of sentence for robbery affirmed. Judgments of sentence
for receiving stolen property and theft by unlawful taking vacated.
8
The Commonwealth asserts that Appellant "committed at least six separate
acts of criminal violence against [the Victim] when he stole her cell phone.
Commonwealth's Brief at 7. According to the Commonwealth, these
separate acts preclude merger in Appellant's case. Id. at 8. We disagree.
Appellant's robbery and theft charges arise from a single act of thievery
during which Appellant inflicted bodily injury upon the Victim. To the extent
Appellant committed additional acts of violence, such acts are irrelevant to
our merger analysis, as made clear by the trial court opinion. See Trial Ct.
Op. at 5 -6 (discussing the sufficiency of evidence for robbery and theft), 7
(discussing the sufficiency of the evidence for simple assault).
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Judgment Entered.
J: sephD. Seletyn,
Prothonotary
Date: 11/8/2016
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