J-A26021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v. RYAN S. WISE Appe||ant No. 6 WDA 2016
Appeal from the Judgment of Sentence September 9, 2015 In the Court of Common Pleas of Clarion County Criminal Division at No(s): CP-16-CR-0000095-2015
BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J. MEMORANDUM BY RANSO|V|, J.: FILED NOVEMBER 08, 2016
Appe||ant, Ryan S. Wise, appeals from the judgment of sentence of 50 to 100 months' incarceration imposed after his conviction for burglary, criminal trespass, and related charges.1 We affirm.
The parties do not dispute the facts, which we adopt from the trial court's opinion.2 See Trial Court Opinion (TCO), 11/23/15, at 1-2. Appe||ant and an accomplice broke into a pharmacy, smashing the window with a hammer and climbing through it. In the process, Appe||ant cut
himself on the broken glass. Once inside, he ransacked the pharmacy and
1 18 Pa.C.S. § 3502 and 18 Pa.C.S. § 3503. 2 Appe||ant did not order the notes of trial and sentencing. Appe||ant's Brief at 8.
stole methadone and morphine. Police later identified Appe||ant through DNA evidence.
On August 6, 2015, following trial, a jury convicted Appe||ant of burglary, criminal trespass, theft by unlawful taking, receiving stolen property, possession of an instrument of crime (PIC), criminal mischief, and possession of a controlled substance.3 The jury acquitted Appe||ant of possession with intent to deliver.4
On September 9, 2015, the court sentenced Appe||ant to eighteen to thirty-six months' incarceration for burglary, sixteen to thirty-two months' incarceration for PIC, and sixteen to thirty-two months' incarceration on the criminal trespass charge.5 Each charge ran consecutively for an aggregate sentence of 50 to 100 months of incarceration.
On September 17, 2015, Appe||ant filed a post-sentence motion arguing that the sentences for criminal trespass and burglary should merge for sentencing purposes, and the sentences for PIC and burglary should
merge for sentencing purposes. On November 23, 2015, by memorandum
opinion, the trial court denied Appe||ant's motion.
3 18 Pa.C.S. §§ 3502, 3503, 3921, 3925, 907, 3304, and 780-113(a)(30), respectively.
4 18 Pa.c.s. § 780-113(a)(30).
5 For purposes of sentencing, the trial court merged the convictions for receiving stolen property and possession of a controlled substance with theft, and the conviction for theft with that of burglary.
Appe||ant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b). The trial court issued a responsive statement incorporating its prior memorandum opinion.
Herein, Appe||ant presents two issues for our review:
I. Did the trial court err in failing to merge the criminal trespass charge with the burglary charge?
II. Did the trial court err in failing to merge [Appellant's] possessing instruments of crime charge with the burglary charge?
Appe||ant's Brief at 4 (unnecessary capitalization omitted).
Appe||ant's claims involve merger. A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence. Commonwealth v. Allen, 24 A.3d 1058, 1062 (Pa. Super. 2011). Our scope of review is plenary and our standard of review is de novo. Id. Whether two offenses merge will turn on Section 9765 of the
Sentencing Code, which provides:
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. First, Appe||ant argues that burglary and criminal trespass should merge for sentencing purposes because both charges share substantially
similar statutory elements, despite current jurisprudence holding otherwise.
Appe||ant argues that the term “licensed and privileged" is foundational to the charges of both burglary and criminal trespass, and thus, the crimes should merge for sentencing purposes.6 Appe||ant's Brief at 10-19.
This Court has previously clarified the current state of merger law in Pennsylvania, noting that “there is no merger if each offense requires proof of an element the other does not.” Commonwealth v. Quintua, 56 A.3d 399, 400-01 (Pa. Super. 2012). Thus, because criminal trespass contains an element of knowledge that burglary does not, and because burglary contains an element of intent that criminal trespass does not, the two offenses do not merge for purposes of sentencing. See Quintua, 56 A.3d at 402.
Appe||ant acknowledges that Quintua holds that the statutory elements of burglary and criminal trespass are not contained within each other, but requests that we reconsider that decision. Appe||ant's Brief at 15. We decline to do so, as a three-judge panel is not empowered to overrule another panel of this Court. See Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013); see also Commonwealth v. Taylor, 649 A.2d 453, 455 (Pa. Super. 1994) (declining to address a claim as a panel of this Court
is not empowered to overrule another panel).
6 A statutory defense to burglary is that an actor is licensed and privileged to enter, while a statutory element of criminal trespass is that an actor is not licensed and privileged to enter. See 18 Pa.C.S. § 3502 and 18 Pa.C.S. § 3503.
Next, Appe||ant argues that the trial court erred in failing to merge Appe||ant's sentence for burglary with his sentence for PIC. Although Appe||ant concedes that PIC and burglary do not merge under 42 Pa.C.S. § 9765, he attempts to put forth an alternative means of merger through 18 Pa.C.S. § 3502(d).7 Appe||ant argues that because the hammer used to break the window was found inside the pharmacy, it was “intended to be possessed therein." Essentially, Appe||ant argues that the possession of the hammer was the crime Appe||ant had intended to commit during the burglary. Appe||ant's Brief at 9, 20-21.
A person commits the offense of burglary if:
[w]ith the intent to commit a crime therein, the person enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense no person is present.
18 Pa.C.S. § 3502(a)(4). With regard to PIC,
A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.
18 Pa.C.S. § 907. An instrument of crime is further defined as anything used for criminal purposes and possessed by the actor under circumstances
not manifestly appropriate for lawful uses it might have. 18 Pa.C.S. § 907.
7 “A person may not be sentenced both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree." 18 Pa.C.S. § 3502(d).
_5_
It is clear from the language of the statutes that PIC and burglary do not merge, as burglary requires entry into a structure and PIC does not. See 42 Pa.C.S. § 9765. Indeed, as noted above, Appe||ant admits as much.
Free access — add to your briefcase to read the full text and ask questions with AI
J-A26021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA v. RYAN S. WISE Appe||ant No. 6 WDA 2016
Appeal from the Judgment of Sentence September 9, 2015 In the Court of Common Pleas of Clarion County Criminal Division at No(s): CP-16-CR-0000095-2015
BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J. MEMORANDUM BY RANSO|V|, J.: FILED NOVEMBER 08, 2016
Appe||ant, Ryan S. Wise, appeals from the judgment of sentence of 50 to 100 months' incarceration imposed after his conviction for burglary, criminal trespass, and related charges.1 We affirm.
The parties do not dispute the facts, which we adopt from the trial court's opinion.2 See Trial Court Opinion (TCO), 11/23/15, at 1-2. Appe||ant and an accomplice broke into a pharmacy, smashing the window with a hammer and climbing through it. In the process, Appe||ant cut
himself on the broken glass. Once inside, he ransacked the pharmacy and
1 18 Pa.C.S. § 3502 and 18 Pa.C.S. § 3503. 2 Appe||ant did not order the notes of trial and sentencing. Appe||ant's Brief at 8.
stole methadone and morphine. Police later identified Appe||ant through DNA evidence.
On August 6, 2015, following trial, a jury convicted Appe||ant of burglary, criminal trespass, theft by unlawful taking, receiving stolen property, possession of an instrument of crime (PIC), criminal mischief, and possession of a controlled substance.3 The jury acquitted Appe||ant of possession with intent to deliver.4
On September 9, 2015, the court sentenced Appe||ant to eighteen to thirty-six months' incarceration for burglary, sixteen to thirty-two months' incarceration for PIC, and sixteen to thirty-two months' incarceration on the criminal trespass charge.5 Each charge ran consecutively for an aggregate sentence of 50 to 100 months of incarceration.
On September 17, 2015, Appe||ant filed a post-sentence motion arguing that the sentences for criminal trespass and burglary should merge for sentencing purposes, and the sentences for PIC and burglary should
merge for sentencing purposes. On November 23, 2015, by memorandum
opinion, the trial court denied Appe||ant's motion.
3 18 Pa.C.S. §§ 3502, 3503, 3921, 3925, 907, 3304, and 780-113(a)(30), respectively.
4 18 Pa.c.s. § 780-113(a)(30).
5 For purposes of sentencing, the trial court merged the convictions for receiving stolen property and possession of a controlled substance with theft, and the conviction for theft with that of burglary.
Appe||ant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b). The trial court issued a responsive statement incorporating its prior memorandum opinion.
Herein, Appe||ant presents two issues for our review:
I. Did the trial court err in failing to merge the criminal trespass charge with the burglary charge?
II. Did the trial court err in failing to merge [Appellant's] possessing instruments of crime charge with the burglary charge?
Appe||ant's Brief at 4 (unnecessary capitalization omitted).
Appe||ant's claims involve merger. A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence. Commonwealth v. Allen, 24 A.3d 1058, 1062 (Pa. Super. 2011). Our scope of review is plenary and our standard of review is de novo. Id. Whether two offenses merge will turn on Section 9765 of the
Sentencing Code, which provides:
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. First, Appe||ant argues that burglary and criminal trespass should merge for sentencing purposes because both charges share substantially
similar statutory elements, despite current jurisprudence holding otherwise.
Appe||ant argues that the term “licensed and privileged" is foundational to the charges of both burglary and criminal trespass, and thus, the crimes should merge for sentencing purposes.6 Appe||ant's Brief at 10-19.
This Court has previously clarified the current state of merger law in Pennsylvania, noting that “there is no merger if each offense requires proof of an element the other does not.” Commonwealth v. Quintua, 56 A.3d 399, 400-01 (Pa. Super. 2012). Thus, because criminal trespass contains an element of knowledge that burglary does not, and because burglary contains an element of intent that criminal trespass does not, the two offenses do not merge for purposes of sentencing. See Quintua, 56 A.3d at 402.
Appe||ant acknowledges that Quintua holds that the statutory elements of burglary and criminal trespass are not contained within each other, but requests that we reconsider that decision. Appe||ant's Brief at 15. We decline to do so, as a three-judge panel is not empowered to overrule another panel of this Court. See Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super. 2013); see also Commonwealth v. Taylor, 649 A.2d 453, 455 (Pa. Super. 1994) (declining to address a claim as a panel of this Court
is not empowered to overrule another panel).
6 A statutory defense to burglary is that an actor is licensed and privileged to enter, while a statutory element of criminal trespass is that an actor is not licensed and privileged to enter. See 18 Pa.C.S. § 3502 and 18 Pa.C.S. § 3503.
Next, Appe||ant argues that the trial court erred in failing to merge Appe||ant's sentence for burglary with his sentence for PIC. Although Appe||ant concedes that PIC and burglary do not merge under 42 Pa.C.S. § 9765, he attempts to put forth an alternative means of merger through 18 Pa.C.S. § 3502(d).7 Appe||ant argues that because the hammer used to break the window was found inside the pharmacy, it was “intended to be possessed therein." Essentially, Appe||ant argues that the possession of the hammer was the crime Appe||ant had intended to commit during the burglary. Appe||ant's Brief at 9, 20-21.
A person commits the offense of burglary if:
[w]ith the intent to commit a crime therein, the person enters a building or occupied structure, or separately secured or occupied portion thereof that is not adapted for overnight accommodations in which at the time of the offense no person is present.
18 Pa.C.S. § 3502(a)(4). With regard to PIC,
A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.
18 Pa.C.S. § 907. An instrument of crime is further defined as anything used for criminal purposes and possessed by the actor under circumstances
not manifestly appropriate for lawful uses it might have. 18 Pa.C.S. § 907.
7 “A person may not be sentenced both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree." 18 Pa.C.S. § 3502(d).
_5_
It is clear from the language of the statutes that PIC and burglary do not merge, as burglary requires entry into a structure and PIC does not. See 42 Pa.C.S. § 9765. Indeed, as noted above, Appe||ant admits as much. However, Appe||ant attempts to argue that 18 Pa.C.S. § 3502(d) applies to this case because Appe||ant broke into the pharmacy with the intent to
possess the hammer therein. Appe||ant baldly states that:
Possession could have only occurred outside the pharmacy_but that is not what happened here. The hammer was found inside the pharmacy on the floor. This, by definition, required possession of the hammer while inside the pharmacy during a burglary. Therefore, the only reasonable inference remains that the hammer was to be possessed after the illegal entry.
Appe||ant's Brief at 21. This argument is so strained as to defy belief. Appe||ant was captured on surveillance video striking the pharmacy window with the hammer and entering the pharmacy. TCO at 1-2. Appe||ant possessed the hammer with the intent to use it in a criminal manner, namely, to break the window and effectuate a burglary. The crime Appe||ant intended to commit by burglarizing the pharmacy was theft: namely, of one tablet of methadone and 287 tablets of morphine. TCO at 2-5. The trial court, in merging Appe||ant's sentences for burglary and theft, made this clear. We see no error in this ruling.
In the alternative, Appe||ant argues that Apprendi8 and its progeny
should apply to his case. He avers that because the trial court did not
8 Apprendi v. New Jersey, 120 s. ct. 2348 (2000).
_6_
merge the sentences for burglary and PIC, his maximum sentence was increased. No specific factual finding was made that “PIC was not intended
II
to be committed during the course of the burglary. Thus, he avers that his sentence was illegal. Appe||ant's Brief at 22-23.
Appe||ant's attempts to apply Apprendi to the instant case are equally unavailing. Apprendi held that any fact other than the fact of prior conviction which increases the penalty for a crime beyond the prescribed statutory maximum must be proven beyond a reasonable doubt and submitted to a jury. Apprendi, 120 S. Ct. at 2363 (emphasis added). The Pennsylvania Supreme Court has further held that Apprendi is not implicated when a sentence imposed for a given conviction does not exceed the applicable statutory maximum. Commonwealth v. Gordon, 942 A.2d 174, 182 (Pa. 2007) (citations omitted).
In the instant case, burglary is a felony of the second degree, with a statutory maximum sentence of ten years. See 18 Pa.C.S. § 3502(c)(1); 18 Pa.C.S. § 1103. Appe||ant was sentenced to eighteen to thirty-six months' incarceration, far below the statutory maximum. PIC is a misdemeanor of the first degree, which carries a statutory maximum of five years. See 18 Pa.C.S. § 907; 18 Pa.C.S. § 1104. Appe||ant was sentenced to sixteen to thirty-two months' incarceration, far below the statutory maximum. Even
Appe||ant's aggregate consecutive sentence does not exceed the statutory
maximum for a felony of the second degree.
As we have noted above, the crimes of burglary and PIC are separate and do not merge. Although Appe||ant's conviction for multiple crimes does, undoubtedly, increase his term of sentence, it does not implicate Apprendi.
Accordingly, Appe||ant's sentences for burglary and criminal trespass, and for PIC and burglary, should not merge; and the trial court's sentence was correct. See Quintua, 56 A.3d at 402.
Judgment of sentence affirmed.
Judgment Entered.
J seph D. Seletyn, Es . Prothonotary
Date: 11/8/2016