Com. v. Savage, W.

• Court: Superior Court of Pennsylvania
• Decided: September 17, 2020
• Docket: 2490 EDA 2018
• Status: Unpublished

Opinion

J-A10003-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WILLIE LEROY SAVAGE : : Appellant : No. 2490 EDA 2018

Appeal from the Judgment of Sentence Entered August 15, 2018 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0004371-2017

BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: Filed: September 17, 2020

Willie Leroy Savage appeals from the judgment of sentence of six to

twenty years of imprisonment imposed after he pled guilty to the attempted

robbery of a pharmacy. We affirm.

On May 18, 2017, at approximately 2:00 p.m., Appellant entered the

Murray Overhill Pharmacy in Media, Pennsylvania, while wearing white latex

gloves and a white t-shirt pulled up over the back of his head. Appellant

approached Samantha Papi, who was working at the pharmacy counter with

another employee, James McHugh. Appellant handed Ms. Papi a note that

said “I have a gun,” before walking around the counter. Affidavit of Probable

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* Retired Senior Judge assigned to the Superior Court. J-A10003-20

Cause, 5/18/17, at 1.1 As Appellant “brush[ed] past” Ms. Papi, he yelled that

he had a gun and wanted all of the “per[c]s.” Id. He also threatened that

“his boys were out front.” Id. Ms. Papi and Mr. McHugh told Appellant that

they did not have any “percs” and activated a silent alarm. Appellant fled

from the pharmacy, flagging down and boarding an eastbound trolley. Ms.

Papi called 911 and the Media Police Department apprehended Appellant from

the trolley. Once removed, Appellant made several unsolicited remarks,

indicating that he was hearing voices, should not have listened to the voices,

and that he did not “get anything” so he should not be arrested. Id. Ms. Papi

positively identified Appellant as the actor and police recovered from her the

note which said: “i have a gun I have my partners waiting wit guns outside.

We dont want to hurt you, give up all the perc, 30’s, 15’s 20’s 10’s, zaney and

promethazine with codeen, no one will get hurt we are watch, no cops.” Id.

Appellant was arrested and charged with attempted robbery, terroristic

threats, robbery, simple assault, and related offenses. On August 18, 2018,

Appellant entered into a negotiated plea agreement, whereby he pled guilty

to a consolidated count of attempted robbery and the Commonwealth

withdrew the other charges and recommended a sentence of six to twenty

years of imprisonment. The trial court accepted the plea and sentenced

1 At his guilty plea hearing, Appellant stipulated to the facts contained within the affidavit of probable cause filed by the Media Police Department as the factual basis for his plea. See N.T. Guilty Plea Hearing, 8/15/18, at 16-17.

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Appellant in conformity with the Commonwealth’s recommendation. Appellant

did not file a post-sentence motion.

Appellant filed a timely notice of appeal and court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal. The trial court

thereafter authored its Rule 1925(a) opinion. Appellant presents the following

issue for our review: “Did the trial court err, abuse its discretion, and/or make

a mistake of law when it accepted a guilty plea and sentenced [Appellant] for

attempted robbery pursuant to 18 Pa.C.S. § 901 and not 18 Pa.C.S. § 3701?”

Appellant’s brief at 2.

Appellant argues that his sentence is illegal. See Appellant’s brief at 6.

Because the legality of a sentence presents a pure question of law, our scope

of review is plenary, and our standard of review is de novo. Commonwealth

v. Pi Delta Psi, Inc., 211 A.2d 875, 889 (Pa.Super. 2019). “If no statutory

authorization exists for a particular sentence, that sentence is illegal and must

be vacated.” Commonwealth v. Stevenson, 850 A.2d 1268, 1271

(Pa.Super. 2004) (en banc).

Specifically, Appellant argues that “the crime of attempted robbery is

not possible,” because robbery itself does not require the completion of the

predicate offense.2 Appellant’s brief at 6. In support of his position, Appellant

2 A person is guilty of robbery, if he: 1) inflicts serious bodily injury upon another; 2) threatens another with or intentionally puts another in fear of immediate serious bodily injury; 3) commits or threatens immediately to commit any felony of the first or second degree; 4) inflicts bodily injury upon

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cites Commonwealth v. Austin, 906 A.2d 1213 (Pa.Super. 2006). See

Appellant’s Brief at 6. Without citing to any authority to buttress its reasoning,

the trial court agrees with the defense position and requests that we vacate

Appellant’s sentence. See Trial Court Opinion, 10/24/19, at 2. We disagree.

First, Austin, did not hold that a conviction or sentence under § 901 for

attempted robbery is per se illegal. Instead, the Austin court held that a

felony-murder conviction could not be sustained after the jury acquitted the

defendant of the underlying predicate felony: robbery. Austin, supra at

1221. While there is no mention of the possibility of attempted robbery in the

majority, the concurrence pointed out that a jury instruction that there was

no such crime as attempted robbery was “not correct as a general

presumption.” Id. at 1224 n.7 (citing Commonwealth v. White, 440 A.2d

1198, 1200-01 (Pa.Super. 1982) (approving plea to attempted robbery after

trial court properly informed the defendant of the elements of attempted

robbery)).

Second, Austin has no precedential value, since it was later overturned

by the Pennsylvania Supreme Court. See Commonwealth v. Miller, 35 A.3d

another or threatens another with or intentionally puts him in fear of immediate bodily injury; 5) physically takes or removes property from the person of another by force however slight; 6) takes or removes the money of a financial institution without the permission of the financial institution by making a demand of an employee of the financial institution orally or in writing with the intent to drive the financial institution thereof. See 18 Pa.C.S. § 3701. A person is guilty of criminal attempt when, “with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S. § 901.

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1206 (Pa. 2012). In Miller, our Supreme Court held that the Austin court

erred in concluding that because the Commonwealth failed to prove that the

defendant killed the victim while in perpetration of a robbery that the second-

degree murder conviction could not stand. Id. at 1212. Our Supreme Court

rejected the Austin court’s holding in favor of retaining Pennsylvania’s

longstanding acceptance of inconsistent verdicts. Id. In doing so, the Miller

court explained that in order to convict someone of second-degree murder the

Commonwealth is not required to prove that the accused actually committed

the predicate offense. Id. Importantly, an attempt to commit the predicate

offense is sufficient to sustain a felony murder conviction. Id.

Accordingly, Appellant has failed to persuade us that his sentence for

attempted robbery is illegal.3 Since we find that the trial court did not err in

accepting Appellant’s negotiated guilty plea to attempted robbery and in

issuing the corresponding sentence, we affirm Appellant’s judgment of

sentence.

Judgment of sentence affirmed.

3 To the extent that Appellant’s challenge to the legality of his sentence is actually an attempt to attack the sufficiency of the evidence to convict him of attempted robbery, we note that Appellant waived this avenue of appeal when he entered into a guilty plea. See Guilty Plea Colloquy ¶ 21; see also Commonwealth v. Rounsley, 717 A.2d 537, 539 (Pa.Super. 1998) (“It is well established that any issue relating to sufficiency of the evidence is waived by entry of a guilty plea[.]”).

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/17/20

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