J-S64026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL PARKER

Appellant No. 309 MDA 2015

Appeal from the Judgment of Sentence of January 23, 2015

In the Court of Common Pleas of Dauphin County

Criminal Division at No.: CP-22-CR-0002383-2013

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MICHAEL PARKER

Appellant No. 310 MDA 2015

Appeal from the Judgment of Sentence of January 23, 2015

In the Court of Common Pleas of Dauphin County

Criminal Division at No.: CP-22-CR-0005688-2013

BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and FITZGERALD, J.*

MEMORANDUM BY WECHT, J.: FILED DECEMBER 14, 2015

Michael Parker appeals his January 23, 2015 judgments of sentence. 

Parker was found guilty of six charges in two separate dockets.1 Parker 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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challenges the weight of the evidence regarding his conviction of criminal 

attempt to commit robbery of a financial institution, 18 Pa.C.S. § 901(a), 

and the legality of his conviction of flight to avoid apprehension, 18 Pa.C.S. 

§ 5126(a). We hold that Parker is not entitled to relief on those challenges. 

However, because a portion of his sentence is illegal, we vacate that portion 

of Parker’s sentence, and we remand for resentencing.

At docket number CP-22-CR-0005688-2013 (“5688-2013”), after a 

jury trial, Parker was found guilty of criminal attempt to commit robbery of a 

financial institution on September 16, 2014.2 At docket number CP-22-CR0002383-2013 (“2383-2013”), the trial court, from the bench, found Parker 

guilty of burglary, criminal attempt to possess a controlled substance with 

the intent to deliver (“PWID”), resisting arrest, flight to avoid apprehension, 

and reckless driving on December 22, 2014.3 

At docket number 5688-2013, the trial court provided the following 

factual history of that case:

(Footnote Continued) _______________________

1 On March 3, 2015, this Court, sua sponte, consolidated Parker’s 

separate appeals at both dockets. See Pa.R.A.P. 513 (affording discretion to 

this Court to consolidate two or more appeals in different cases into a single 

appeal).

2 18. Pa.C.S. §§ 901(a), 3701(a)(1)(vi).

3 18 Pa.C.S. §§ 3502(a)(1), 901(a), 35 P.S. § 780-113(a)(30), 18 

Pa.C.S. §§ 5104, 5126(a), and 75 Pa.C.S. § 3736(a), respectively. 
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On the day of the incident, Randy Hall [] was working as a bank 

teller for Members 1st Federal Credit Union (“Members 1st”) in 

the Strawberry Square branch, Harrisburg, Pennsylvania. When 

he returned to his teller station after his lunch break, a man 

walked up to his station that was located directly inside the 

entrance and, in a low voice, said, “Give me all of your money.” 

[Hall] described the man as wearing a black hat, black hoodie[,] 

and jeans. While testifying, [Hall] identified the man from the 

bank as [Parker]. [Hall] described [Parker’s] demand and 

demeanor as firm, serious[,] and not joking in any respect. 

[Hall] testified that, at the moment [Parker] approached and 

made his demand, he was “caught off guard and [his] heart 

dropped.”

When [Hall] responded that he was closed as he had no money 

drawer, [Parker] repeated, “Give me all your money.” After the 

second demand, [Parker] began to leave the bank but, stopped 

and returned to [Hall’s] teller station. Upon his return, [Parker] 

asked [Hall] if he could cash a money order to which he replied, 

“If you’re a member with us.” [Parker] never produced the 

money order he allegedly wanted to cash. [Parker] was not a 

member so he left the branch. At this point in time, [Hall] 

notified his assistant bank manager of what had happened and 

the police were called.

During the trial, [Hall] identified the security video obtained from 

the bank branch on the day of the robbery. He also described 

the events depicted in the video. The description matched 

[Hall’s] testimony about [Parker’s] actions and his own actions 

during the attempted robbery. He acknowledged that [Parker] 

did not visibly present a weapon.

Detective Richard Gibney [] of the Harrisburg Bureau of Police [] 

was assigned to investigate the attempted bank robbery. 

[Detective] Gibney was assigned to the Federal Bureau of 

Investigation (“FBI”) Safe Streets Task Force and his duties 

included investigating bank robberies. 

When he arrived on the scene of the incident, [Detective] Gibney 

described [Hall] as “shaken, visibly shaken.” [Detective] Gibney 

interviewed Hall to gather the details of his encounter with 

[Parker]. He also obtained a series of still photographs taken 

from the bank security video which were disseminated to media 

outlets in the hope that the suspect would be found.
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On the next day, [Detective] Gibney was called to the Harrisburg 

police station at approximately 6:45 p.m. as [Parker] had 

voluntarily come in after learning of the dissemination of his 

picture. He was accompanied by his girlfriend and his girlfriend’s 

father. After [Parker] was Mirandized,[4] [Detective] Gibney 

questioned him about the attempted robbery and [Parker] 

replied that he knew nothing about it. [Detective] Gibney then 

showed him the still photos taken from the video and asked why 

he was in the bank. [Parker] spoke about being stressed out 

and hitting a low point in life instead of providing him with an 

explanation regarding his presence at Member’s 1st. Eventually, 

[Parker] told [Detective] Gibney that he was probably just 

passing through and never mentioned a money order. Through 

his investigation, [Detective] Gibney discovered that [Parker] did 

not have an account with Members 1st and never did. During

the interview, [Detective] Gibney recognized [Parker’s] hat as 

the same type he was wearing in the security video.

Ms. Dolisa Underwood [], [Parker’s] girlfriend, testified on behalf 

of [Parker]. According to [Underwood], on the day of the 

incident she and [Parker] left the house together, took their 

children to their grandparents’ house[,] and went to a check 

cashing establishment to cash a money order for [thirty-seven 

dollars]. The check[-]cashing store was closed so they 

proceeded to Harrisburg together where [Underwood] went to 

work and [Parker] “. . . went his separate way.”

Later that evening, [Underwood] was alerted to the incident at 

Members 1st by a family [member] who had seen [Parker’s] 

picture on a news clip. She convinced [Parker] to go to the 

police station with her and her father to find out what had 

happened and why his picture was on the news.

[Underwood] was in the interview room with [Detective] Gibney. 

She stated that [Parker] had been acting abnormally or just “not 

with it” when discussing the robbery. [Underwood] testified that 

[Parker] kept denying that he committed the robbery and would 

not give [Detective] Gibney a reason for being in the bank; 

instead, [Parker] said 1. he didn’t know why he was there; 2. he 

was passing through; and, 3. he was just joking with the teller. 

____________________________________________

4 Miranda v. Arizona, 384 U.S. 436 (1966).
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According to [Underwood], [Parker] did not mention the money 

order during the interview. 

During [Underwood’s] testimony, the parties entered a 

stipulation on the record that a money order in the amount of 

[thirty-seven dollars] was found in [Parker’s] pocket on the day 

of his arrest.

Trial Court Opinion (“T.C.O.”), 6/22/2015, at 3-6 (bracketed material within 

direct quotes in the original; footnotes and citations to the notes of 

testimony omitted).

At docket number 2383-2013, the trial court provided the following 

factual history of that case:

On April 9, 2013, Detective Nicholas Licata [] was working 

undercover for the Harrisburg Bureau of Police [] with the vice 

and organized crime unit. Around 10:15 a.m., he was patrolling 

in the area of 16th and Putnam Streets in Harrisburg near a bar 

called OD’s Plantation when he encountered [Parker]. [Parker] 

passed [Detective] Licata while driving in the opposite direction 

on 16th Street in a silver Chevrolet bearing a New York license 

plate. [Detective] Licata testified that [Parker] made a waving 

gesture to him signaling him to pull over into the nearby parking 

lot. 

Based on his experience and the fact that he was patrolling an 

area known for high drug, high crime activity, [Detective] Licata 

suspected that [Parker] was trying to sell him illegal drugs. 

However, since he was alone on patrol, he decided to leave the 

area by driving eastbound on Sycamore Street. [Parker] turned 

his car around to follow [Detective] Licata. In response to 

[Parker’s] actions, [Detective] Licata pulled over and rolled down 

his driver’s side window. [Parker] pulled up next to him and 

asked [Detective] Licata what he wanted to which the Detective 

replied, “. . . I was looking for my friend Jay and I wanted some 

hard.” [Detective] Licata explained that “Jay” is a common 

name that drug dealers use and “hard” is a street slang term for 

crack cocaine. After [Parker] told him that he had “hard,” 

[Detective] Licata told him he did not like to deal with new 

people so he would keep looking for his friend.
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[Parker] would not take no for an answer. He kept insisting that 

either [Detective] Licata come to his car or that [Detective] 

Licata let him in his car. [Parker] then reversed his car, parked 

behind the police vehicle[,] and approached the driver’s side 

window with a plastic baggie containing what [Detective] Licata 

suspected to be crack cocaine. [Detective] Licata tried to 

convince [Parker] to give him his phone number so he could set 

up a meeting later when he had a chance to call other officers 

for support. [Parker] would not agree so [Detective] Licata 

drove away.

When [Parker] began following [Detective] Licata in his car he 

radioed for police back up [sic]. While driving north on 17th 

Street, [Parker] passed him and gestured with his hands in a 

way that [Detective] Licata described as asking “what are you 

doing?” [Detective] Licata continued to drive in the area of 17th 

Street around the Hall Manor public housing complex in order to 

keep track of [Parker’s] whereabouts as he waited for police 

back up [sic] to arrive. Eventually, [Parker] backed into a 

parking spot in a lot by 32 Row Hall Manor. [Detective] Licata 

parked in a spot about [two-hundred] yards west of the parking 

lot at a point where he could still see [Parker]. [Parker] left the 

lot and parked near [Detective] Licata’s vehicle, got out[,] and 

walked towards his vehicle[,] which prompted [Detective] Licata 

to drive away. As [Detective] Licata was driving away, [Parker] 

yelled at him to “get out of the hood if [you] wasn’t [sic] going 

to buy shit.”

[Detective] Licata drove away to get out of view, but shortly 

returned to the area of the parking lot where [Parker] had been 

parked and he was there again. The uniformed patrol back up 

[sic] arrived and blocked [Parker] in from the front, but he 

immediately reversed and swerved out of the parking lot and 

fled west. As [Parker] was fleeing in his vehicle, a police cruiser 

was coming from the opposite direction. Right where 

[Detective] Licata was parked, [Parker] jumped out of his rolling 

vehicle[,] which hit a parked car[] and ran through Hall Manor 

toward the fence separating Hall Manor and the Park 

Apartments. [Detective] Licata and another officer gave chase 

on foot and spotted him running into an apartment building at 

1405 South 15th Street. After checking the rear of the building, 

the officers began looking for him in the apartments.

Officer Colin Kerns [] responded to [Detective] Licata’s radio call 

for assistance. As he arrived in the area of 17th and Hanover 
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Streets, he observed another officer attempt to stop the silver 

Chevrolet vehicle[,] which suddenly moved in reverse. Officer 

Kerns saw the driver exit the vehicle and flee on foot prompting 

him to give chase. Despite multiple officers chasing him and 

commanding him to stop, [Parker] climbed over a fencing [sic] 

separating Hall Manor and the Park Apartments. Once he was 

over the fence, [Parker] paused and turned toward the direction 

of Hall Manor[,] which allowed Officer Kerns to see his face. He 

then observed [Parker] walk to the front door of the 1405 South 

15th Street Park Apartments. Officer Kerns reported his 

observation to the other responding officers by radio. 

Responding officers surrounded the apartment building.

At the time of the incident[,] Latoya Carter [] lived at 1405 

South 15th Street, Apartment 204, with her [six-year-old] 

daughter. [Carter] had heard someone “fiddling” with her 

doorknob[,] which caused her to go to the door where she found 

[Parker]. She stated that the door opened as soon as she got to 

it. [Parker] entered the apartment and asked her to hide him 

because someone tried to “jump” him outside. [Carter] testified 

that she played along by telling him to hide in her bedroom so 

she could take her child and leave the apartment for safety. 

As [Carter] ran from the building, officers were already inside 

searching for the suspect. She told officers that an unknown 

man had run into her apartment and she gave them permission 

to investigate. Officers located [Parker] hiding in a bedroom 

closet. Police gave [Parker] three warnings that if he did not 

come out on his own, they were going in with a K-9 dog. He did 

not comply, so the K-9 dog was released to retrieve him from 

the closet.

After he returned to his patrol car, Officer Kerns learned that a 

suspect was in custody at 1405 Park Apartments. When 

[Officer] Kerns went to the apartment, he positively identified 

[Parker] as the person he had been chasing. [Detective] Licata 

also positively identified the person in the closet as the person 

he had been interacting with since his attempt to sell him illegal 

narcotics.

Id. at 11-14 (bracketed material within direct quotes in the original; 

footnotes and citations to the notes of testimony omitted).
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After deferring sentencing at both dockets, the trial court sentenced 

Parker on January 23, 2015. At docket number 2383-2013, Parker was 

sentenced to an aggregate term of five to ten years’ imprisonment for his 

convictions of burglary, criminal attempt—PWID, resisting arrest, flight to 

avoid apprehension, and reckless driving, which included a sentence of six to 

twelve months’ imprisonment on the flight to avoid apprehension count and 

a concurrent five to ten years’ imprisonment on the burglary count. At 

docket number 5688-2013, Parker was sentenced to two to five years’ 

imprisonment for his conviction of criminal attempt—robbery of a financial 

institution. As a result of both sentences, Parker received an aggregate 

sentence of seven to fifteen years’ imprisonment.

Parker filed a post-sentence motion on docket number 5688-2013 on 

January 29, 2015, which the trial court denied on February 2, 2015. 

Regarding docket number 2383-2013, Parker filed a post-sentence motion 

on February 2, 2015, which the trial court denied on February 10, 2015. On 

February 17, 2015, Parker simultaneously filed a notice of appeal for both 

dockets. 

Parker filed a petition to proceed pro se on direct appeal for both 

cases, which the trial court granted on March 2, 2015. The trial court 

ordered Parker to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b) for each docket. In response to the trial 

court’s order, Parker filed a petition for an extension of time to file his 

concise statements, which the trial court granted on March 17, 2015.
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On April 17, 2015, the trial court appointed Parker new counsel and 

provided him additional time to file an amended concise statement, which 

Parker timely filed on May 19, 2015. On June 22, 2015, the trial court filed 

an opinion pursuant to Pa.R.A.P. 1925(a).

Parker raises two issues for our review:

I. Whether [Parker’s] attempted robbery conviction was against 

the weight of the evidence?

II. Whether as a matter of law [Parker] should not have been

convicted of both burglary and flight?

Brief for Parker at 7 (bold omitted).

In his first issue, Parker claims that the jury’s verdict regarding his 

attempted robbery conviction was against the weight of the evidence.5 Brief 

for Parker at 10-12. Accordingly, we review the weight of the evidence as to 

only that conviction.

An allegation that the verdict is against the weight of the evidence is 

addressed to the discretion of the trial court. Commonwealth v. Dupre, 

866 A.2d 1089, 1101 (Pa. Super. 2005) (citing Commonwealth v. 

Sullivan, 820 A.2d 795, 805–06 (Pa. Super. 2003) (quoting 

Commonwealth v. Widmer, 744 A.2d 745, 751–52 (Pa. 2000))). The 

Pennsylvania Supreme Court has explained that “[a]ppellate review of a 

weight claim is a review of the exercise of discretion, not of the underlying 

____________________________________________

5

Pursuant to Pa.R.Crim.P. 607(A)(3), Parker preserved his weight 

challenge in his post-sentence motion.
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question of whether the verdict is against the weight of the evidence.” 

Widmer, 744 A.2d at 753 (citation omitted). To grant a new trial upon the 

basis that the verdict is against the weight of the evidence, this Court has 

explained that “the evidence must be ‘so tenuous, vague and uncertain that 

the verdict shocks the conscience of the court.’” Sullivan, 820 A.2d at 806 

(quoting Commonwealth v. La, 640 A.2d 1336, 1351 (Pa. Super. 1994)).

[This Court shall not undertake to reassess credibility of 

witnesses, as] it is well settled that we cannot substitute our 

judgment for that of the trier of fact. Commonwealth v. 

Holley, 945 A.2d 241, 246 (Pa. Super. 2008). Further, the 

finder of fact was free to believe the Commonwealth’s witnesses 

and to disbelieve the witness for the Appellant. See 

Commonwealth v. Griscavage, 517 A.2d 1256 (Pa. 1986) (the 

finder of fact is free to believe all, none, or part of the testimony 

presented at trial).

Commonwealth v. Bozic, 997 A.2d 1211, 1223-24 (Pa. Super. 2010) 

(citing Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009)) 

(citations modified).

“A person is guilty of robbery if, in the course of committing a theft, 

he[] takes or removes 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 deprive the 

financial institution thereof.” 18 Pa.C.S. § 3701(a)(1)(vi). Further, “[a] 

person commits an attempt when, with the 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(a).
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In support of his weight of the evidence claim, Parker argues that the 

trial court abused its discretion in finding him guilty of attempted robbery 

because he “abandoned his criminal attempt and took further steps[,] which 

prevented the commission thereof.” Brief for Parker at 12. Specifically, 

Parker notes that “[a]fter the alleged criminal effort, he told the bank teller 

that he had been joking and requested to cash a money order.” Id.

(citations to the notes of testimony omitted).

Renunciation is a defense to criminal attempt, which requires a 

showing that the defendant avoided the commission of the crime attempted 

by abandoning his criminal effort. Commonwealth v. Zingarelli, 839 A.2d 

1064, 1072 (Pa. Super. 2003). Renunciation is defined as follows:

(1) In any prosecution for an attempt to commit a crime, it is a 

defense that, under circumstances manifesting a voluntary and 

complete renunciation of his criminal intent, the defendant 

avoided the commission of the crime attempted by abandoning 

his criminal effort and if the mere abandonment was insufficient 

to accomplish such avoidance, by taking further and affirmative 

steps which prevented the commission thereof.

(2) A renunciation is not “voluntary and complete” within the 

meaning of this subsection if it is motivated in whole or part by:

(i) a belief that circumstances exist which increase the 

probability of detection or apprehension of the defendant or 

another participant in the criminal enterprise, or which render 

more difficult accomplishment of the criminal purpose; or

(ii) a decision to postpone the criminal conduct until another 

time or to transfer the criminal effort to another victim or 

another but similar objective.

18 Pa.C.S. § 901(c).
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After Parker demanded money from the bank teller, the bank teller 

conveyed to Parker that he did not have access to any money. It is at this 

point, Parker argues, that he withdrew from his criminal attempt and 

proceeded to joke with the bank teller. Brief for Parker at 12. The bank 

teller, however, maintained that Parker was not joking during this 

interaction. In spite of these conflicting testimonies, Parker essentially asks 

the Court to believe his account of this interaction with the bank teller. 

Here, the jury found the bank teller’s testimony to be credible, and, as a 

result, we may not reassess a witness’ credibility, as that determination lies 

solely within the province of the fact-finder. See Commonwealth v. 

Manley, 985 A.2d 256, 262 (Pa. Super. 2009).

Although some inconsistencies existed in the testimony produced at 

trial, the jury was free to believe, or not to believe, all, none, or part of that 

testimony. The record supports the jury’s verdict, specifically the jury’s 

finding of a lack of renunciation on behalf of Parker, and we discern no basis 

upon which to conclude that the trial court abused its discretion by 

concluding that the jury’s verdict failed to shock that court’s conscience.

In his final issue, Parker claims that the trial court erred as a matter of 

law by convicting him of both burglary and flight to avoid apprehension. 

Brief for Parker at 13. Parker argues that he could not have been convicted 

of flight to avoid apprehension, the underlying offense to his burglary 

conviction. Id. Parker relies upon the principle espoused by this Court in 

Commonwealth v. Benedetto, 462 A.2d 830, 832 (Pa. Super. 1983), 
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wherein we held that a defendant may not be convicted both for burglary 

and for the offense which it was his intent to commit after the entry, unless 

the additional offense constitutes a felony of the first degree or second 

degree. Brief for Parker at 13. To that end, Parker notes that flight to avoid 

apprehension, 18 Pa.C.S. § 5126(a), is only a third-degree felony. Id.

Parker’s reliance upon Benedetto, however, is misplaced. Several 

years after our decision in Benedetto, this Court clarified any potential 

confusion regarding 18 Pa.C.S. § 3502(d), which prohibits multiple 

convictions of both burglary and the underlying offense to that burglary. 

Commonwealth v. Couch, 731 A.2d 136, 144 (Pa. Super. 1999). In 

Couch, we explained that the term “conviction” refers specifically to 

sentencing of those crimes and not merely a judgment of guilt, as Parker 

suggests. Id. Accordingly, Parker may be found guilty of both burglary and 

flight to avoid apprehension. For these reasons, Parker’s claim fails.

Even though we have determined that Parker is not afforded relief 

upon his two substantive claims, we have detected a legal error in his 

sentence. Specifically, his convictions for burglary and flight to avoid 

apprehension should have merged. Issues implicating merger constitutes a 

nonwaivable challenge to the legality of the sentence, and a claim that we 

may raise sua sponte. Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa. 

Super. 2007).

As previously mentioned, Parker was convicted of both burglary and 

the underlying offense to that burglary, flight to avoid apprehension. Parker 
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was sentenced to five to ten year’s imprisonment on his burglary conviction 

and six to twelve months’ imprisonment on his flight to avoid apprehension 

conviction. Notes of Testimony (“N.T.”), 1/23/2015, at 10-11.

Our Crimes Code precludes sentencing for both burglary and the 

object crimes in the following circumstances:

(d) Multiple convictions.—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). Accordingly, convictions for burglary and an 

underlying offense that does not constitute a felony in the first or second 

degree merge for sentencing purposes. Commonwealth v. Brown, 466 

A.2d 1071, 1073 (Pa. Super. 1983). Here, Parker was sentenced to six to 

twelve months’ imprisonment for his conviction of flight to avoid 

apprehension, a third-degree felony, which was set to run concurrently to his 

sentence of five to ten years’ imprisonment on his burglary conviction. 

Therefore, the trial court should have merged Parker’s conviction of flight to 

avoid apprehension with his burglary conviction for sentencing purposes. 

Consequently, Parker’s sentence regarding this conviction is illegal.

For the reasons set forth above, although we do not disturb the 

underlying conviction, we vacate the sentence imposed at docket number 

2383-2013 for flight to avoid apprehension because it merges with burglary 

for sentencing purposes.
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Judgment of sentence at docket number 2383-2013 vacated. 

Judgment of sentence at docket number 5688-2013 affirmed. Case 

remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/14/2015