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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SUKORI L. BUTLER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 postsentence 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