J-S07026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID DALTON GARNER,

Appellant No. 288 MDA 2014

Appeal from the Judgment of Sentence of July 11, 2012

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0000061-2011

BEFORE: BENDER, P.J.E., OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.: FILED APRIL 07, 2015

Appellant, David Dalton Garner, appeals from the judgment of 

sentence entered on July 11, 2012, as made final by the entry of an order 

denying post-sentence motions on August 30, 2012, following his jury trial 

convictions for four counts of kidnapping, two counts each of unlawful 

restraint, robbery, and theft by unlawful taking, and one count each of 

attempted aggravated assault and simple assault by physical menace.1 

Upon review, we affirm.

The facts of this case, as aptly summarized by the trial court, are as 

follows:

On December 10, 2010, at approximately 6:15 p.m., 

Trooper Aaron Martin was called to investigate an attempted 

____________________________________________

1 18 Pa.C.S.A. §§ 2901, 2902, 3701, 3921, 901, and 2701, respectively.
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homicide and robbery in St. Thomas Township, Franklin 

County, Pennsylvania. Trooper Martin proceeded to the 

emergency room of Chambersburg Hospital, where he met 

with the victims[,] Micah Eugene McGowan and Mary Eireen 

McGowan. He observed ligature marks on Micah’s neck, a 

stab wound on the left side of his head, and a laceration on 

the back of his head, along with swelling and bruising on his 

face.

The incident occurred earlier that day. [Appellant] had 

just been released on parole earlier that morning. Micah 

stated that [Appellant] had knocked on his front door at 

2:30 p.m. [Appellant’s] girlfriend, Heather Elaine Johnson 

drove him there and dropped him off. [Appellant] was an 

old friend who Micah had not seen in almost nine months. 

Micah invited [Appellant] inside and offered him a glass of 

water, after which they proceeded to Micah’s room. They 

watched television and Micah went to his desk to work. At 

that point, [Appellant] struck Micah in the back of his head 

with a bathroom scale. Micah then fled downstairs but was 

chased by [Appellant]. 

[Appellant] brought Micah back upstairs to his room and 

proceeded to stab Micah on the side of the head with a knife 

he brought. Micah was lying face down on the floor and 

[Appellant] had his hands tied behind his back. [Appellant] 

then put a plastic bag over Micah’s head. Micah was unable 

to breathe and bit a []hole in the bag. [Appellant] then 

slipped a tie from a bathrobe around Micah’s neck, 

beginning to strangle him. [Appellant] had his knees on 

Micah’s back as he pulled the bathrobe tie, asking where 

Micah’s valuables were. Micah told [Appellant] the location 

of his keys and wallet, at which time [Appellant] took Micah 

to the living room downstairs. It was at this point that 

Micah’s mother, Mary McGowan, came home.

Mary arrived home at approximately 4:00 p.m. She 

had been visiting her husband at Hershey Medical Center. 

As Mary came through the back door, she heard Micah yell 

“Mom, run!” [Appellant] then ran at her with a knife, telling 

her to shut up or he would hurt her. [Appellant] had Mary 

get on the floor in the kitchen face down. Mary asked 

[Appellant] what he was doing, to which he replied that he 

owed some people money. Mary indicated that she had 
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money in her purse. [Appellant] removed $500[.00] cash 

and credit cards from her wallet and her purse. Mary asked 

if [Appellant] was going to kill her and her son, to which 

[Appellant] replied in the negative but he would not allow 

her to check on Micah. Then [Appellant] tied Mary’s hands 

behind her back. Because Mary’s shoulder hurt, he then 

tied her hands in the front and had her sit down in front of 

the [refrigerator]. [Appellant] also asked if there were any 

guns in the house. Mary indicated that they had “long 

guns,” but lied and said they had no pistols. [Appellant] did 

not take any guns. 

[Appellant] told Mary to tell the police that they had 

been robbed by black men. [Appellant] told her that he 

owed $50,000.00 to some “bad men,” and if the police got 

involved the men would harm him and her family. It was at 

that point that Mary asked again to help her son, Micah. 

She told [Appellant] that he needed to go to a hospital. 

[Appellant] indicated that he would take him to 

McConnellsburg, but Mary stated he should go to 

Chambersburg. [Appellant] untied Mary and allowed her to 

pull the car around the back of the house. He then untied 

Micah and helped Mary get him into the car. [Appellant] got 

into another car owned by Mary and followed her as she left 

with Micah [to] drive him to Chambersburg Hospital. 

[Appellant] was arrested and charged[, inter alia,] with the 

above listed offenses. 

Trial Court Opinion, 4/24/2014, at 4-5.

On May 10, 2012, a jury convicted Appellant of the aforementioned 

crimes. On July 11, 2012, the trial court sentenced Appellant to an 

aggregate term of incarceration of 371⁄2 to 84 years of incarceration. 

Appellant filed a post-sentence motion on July 23, 2012, seeking 

reconsideration of his sentence. By order entered on August 30, 2012, the 

trial court denied relief. Appellant did not appeal. On January, 16, 2014, 

the trial court reinstated Appellant’s direct appeal rights nunc pro tunc, after 

Appellant filed a pro se petition pursuant to the Post Conviction Relief Act 
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(PCRA), 42 Pa.C.S.A. §§ 9541-9546, and appointed counsel filed an 

amended PCRA petition. This timely appeal followed.2

On appeal, Appellant presents one issue for our review:

Whether the trial court erred as a matter of law by refusing 

to merge four convictions of kidnapping into two sentences 

when there were only two victims and all of the convictions 

arise from a single criminal act?

Appellant’s Brief at 4. 

Appellant argues that the trial court erred as a matter of law by not 

merging his four kidnapping convictions into two sentences, one sentence for 

each victim. Id. at 7-9. More specifically, in sum, Appellant contends:

[Appellant] was convicted of kidnapping both victims 

under 42 Pa.C.S. § 2901(a)(2) and § 2901(a)(3). 

Kidnapping, under 18 Pa.C.S. § 2901, requires a person to 

‘unlawfully remove[] another a substantial distance under 

the circumstances from the place where he is found, or if he 

unlawfully confines another for a substantial period in a 

place of isolation, with any of the following intent: [...] (2) 

to facilitate commission of any felony or flight thereafter; 

(3) to inflict bodily injury on or terrorize the victim or 

another.’

While [Appellant] may have had differing intentions from 

kidnapping the victims, it is clear that there was only one 

occurrence of kidnapping of each respective victim. There 

were not separate incidences of kidnapping for differing 

purposes, but one incident of kidnapping each victim while 

____________________________________________

2

 Appellant filed a notice of appeal on February 12, 2014. The same day, 

the trial court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied 

timely. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on 

April 24, 2014. 
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there may have been different purposes for perpetrating the 

kidnapping. While it is clear that the jury found [Appellant] 

had the intent to confine the McGowans for the purposes of 

facilitating the commission of a felony, and to inflict bodily 

injury or terrorize, it was one crime committed against each 

respective victim. 

 

This is a case of alternative theories of criminal 

culpability, for the same crime, in which the jury found 

[Appellant] to be guilty of both states of mind, but it was 

clearly only one volitional act. Essentially, the crime of 

kidnapping has two elements, 1) the act of unlawfully 

confining or moving the victim, and 2) intent to do so for 

one of four delineated unlawful purposes. Following the 

logic of the trial court’s interpretation of [42 Pa.C.S.A.] 

§ 9765, [Appellant’s] actions are the equivalent as if he 

would have kidnapped the McGowan[s] for one purpose, left 

the residence, then returned at a different time and 

kidnapped them again for another purpose delineated under 

§ 2901. That is clearly not what occurred in this case, and 

it would be inherently unfair to punish [Appellant] as if it 

were the case.

For that reason, the separate convictions under 

§ 2901(2) and (3) should have been merged for each 

respective victim, as they were differing theories of intent 

for the same volitional act, and thus constituted only one 

crime, not two distinct criminal actions arising out of 

separate sets [of] factual circumstances.

Id. at 8-9. 

“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. 

Nero, 58 A.3d 802, 806 (Pa. Super. 2012) (citation omitted). “An illegal 

sentence must be vacated. In evaluating a trial court's application of a 

statute, our standard of review is plenary and is limited to determining 

whether the trial court committed an error of law.” Id. (citation omitted).
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Merger of sentences is governed by 42 Pa.C.S.A. § 9765, which 

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.A. § 9765.

Our Supreme Court determined that

the plain language of Section 9765 reveals a legislative 

intent to preclude the courts of this Commonwealth from 

merging sentences for two offenses that are based on a 

single criminal act unless all of the statutory elements of 

one of the offenses are included in the statutory elements of 

the other. Our Supreme Court held that when each offense 

contains an element the other does not, merger is 

inappropriate.

Nero, 58 A.3d at 806 (citations, quotations, and brackets omitted).

The jury convicted Appellant of two kidnapping charges with respect to 

each victim. The legislature has defined those two crimes as follows:

[A] person is guilty of kidnapping if he unlawfully removes 

another a substantial distance under the circumstances 

from the place where he is found, or if he unlawfully 

confines another for a substantial period in a place of 

isolation, with any of the following intentions:

* * *

(2) To facilitate commission of any felony or flight 

thereafter.
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(3) To inflict bodily injury on or to terrorize the victim or 

another.

* * *

18 Pa.C.S.A. § 2901(a)(2) and (3).

Initially, we note that, to the extent that Appellant argues he 

committed “one crime [...] against each respective victim[,]” the jury found 

otherwise. We also note that Appellant did not raise a challenge to the 

sufficiency of the evidence in his Pa.R.A.P. 1925(b) concise statement. 

Hence, Appellant has waived any challenge to the sufficiency of the evidence 

introduced in support of his four kidnapping convictions. See 

Commonwealth v. Berry, 877 A.2d 479, 485 (Pa. Super. 2005) (holding 

issues which are not raised in a concise statement of matters complained of 

on appeal under Pa.R.A.P. 1925 are waived on appeal). 

Regarding the merger of sentences, in this case, there is no dispute 

that the crimes arose from a single criminal act. However, upon review of 

Subsections (a)(2) and (a)(3) of the kidnapping statute, each offense 

contains an element the other does not. The criminal intent for kidnapping 

under Subsection (a)(2) is to “facilitate a felony or flight thereafter.” 

Whereas, the criminal intent for kidnapping under Subsection (a)(3) is to 

“inflict bodily harm or to terrorize the victim.” Both Subsections have a 

statutory element that the other does not. Moreover, this Court has

previously refused to merge sentences for two crimes defined under two 

different sections of the aggravated assault statute. See Commonwealth 
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v. Rhoades, 8 A.3d 912, 918 (Pa. Super. 2010). Hence, we discern no 

error of law in denying Appellant relief on his merger claim. 

Judgment of sentence affirmed. 

 Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2015