J-S71026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ROBERT E. SICKLE

Appellant No. 3326 EDA 2015

Appeal from the Judgment of Sentence July 9, 2015

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0000475-2014

BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J. *

MEMORANDUM BY PANELLA, J. FILED DECEMBER 06, 2016

Appellant, Robert E. Sickle, appeals from the judgment of sentence 

entered on July 9, 2015, in the court of Common Pleas of Montgomery 

County. Sickle contends that the weight of the evidence presented by the 

Commonwealth does not support his convictions and questions the propriety 

of his sentences. We affirm the convictions, but reverse Sickle’s judgment of 

sentence for terroristic threats, as we find that the sentence for that 

conviction should have merged with the robbery sentence.

The relevant facts and procedural history are as follows. On January 7, 

2014, Sickle was arrested and charged with robbery and related offenses. 

Sickle proceeded to a jury trial. At trial, the Commonwealth presented the 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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following evidence. Tiffany Hernandez testified that on December 4, 2012, 

she was working the night shift at the Giant Food Store in Whitpain 

Township, Montgomery County, Pennsylvania. At approximately 11:30 p.m., 

Hernandez observed a thin, Caucasian man wearing blue jeans, a blue 

hooded sweatshirt, sunglasses, and white tape concealing part of his face 

enter the store. The man approached Hernandez and demanded that she 

open a register for him. The man revealed a bomb strapped to his midsection and threated to “blow the place up” if Hernandez did not comply with 

his demands. Hernandez opened the cash drawer, placed the till on the 

counter, and observed the man remove two fifty-dollar bills and a number of 

ten-dollar bills from the till and exit the store. Hernandez immediately 

informed her manager, the police were alerted to the theft, and the 

surveillance video was pulled from the surveillance cameras. Hernandez 

testified that due to the sunglasses and white tape, she was unable to 

positively identify the suspect, but believed that he was in his late thirties 

and approximately five foot seven inches tall. 

Next, the Commonwealth presented the testimony of Officer Eric 

Ponzaq. Officer Ponzaq testified that he and his K-9 partner were called to 

the Giant Food Store immediately following the robbery. Officer Ponzaq and 

the K-9 attempted to track the suspect, but were unable to locate him. 

However, the K-9 alerted Officer Ponzaq to the presence of the believed 

incendiary device. Upon further examination, the police determined that the 

device was not an actual incendiary device, but rather a plastic device 
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wrapped in tape and wires. Hernandez positively identified the plastic device 

as the device the man displayed to her in the Giant Food Store. 

The Commonwealth’s next witness was Donald Schwartz. Schwartz 

testified that at 6:00 a.m. on December 5, 2012, he discovered a blue 

hooded sweatshirt on his front lawn. Schwartz immediately notified the 

police of his discovery. Schwartz noted that the sweatshirt was not present 

on his lawn the previous night. The police recovered a DNA sample from the 

sweatshirt. 

Edward Giannone testified next on behalf of the Commonwealth. 

Giannone, a friend of Sickle, explained that he agreed to testify on behalf of 

the Commonwealth in the hope that he would receive leniency on three 

pending cases. On the night of the robbery, Giannone testified that he 

received a telephone call from Sickle asking for a ride. Sickle told Giannone 

that he was “dope sick,” “desperate for money,” and willing to give Giannone 

“plenty of money” in exchange for transportation. N.T., Trial, 3/31/15, at 

21. Sickle asked Giannone to pick him up from the gas station near the 

Giant Food Store at approximately 11:15 p.m. At 11:25 p.m., Giannone 

received a phone call from Sickle, asking Giannone to pick him up further 

down the road. Giannone complied, and Sickle emerged from a cluster of 

trees, entered Giannone’s vehicle and shouted “go, go, go, get out of here.” 

Id., at 27-28. Giannone drove Sickle to Norristown to buy heroin and then 

dropped Sickle off at his home. Before Sickle exited the vehicle, he gave 

Giannone sixty dollars for the ride. 
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The next morning, Sickle confessed to Giannone that he had robbed 

the Giant Food Store with a fake bomb. Sickle explained that he rode a 

bicycle to the Giant Food Store, hid the bicycle, and walked the rest of the 

way to the store. He told Giannone that he showed Hernandez the fake 

bomb and told her, “Look lady, I ain’t playing around here, give me all the 

money or I’m going to kill us both.” Id., at 31-32. Sickle expressed regret at 

having dropped the fake bomb once he left the store because he was afraid 

that the police would be able to match his DNA to the device. Ultimately, in 

May 2013, Giannone approached Detective William Armstrong and identified 

Sickle as the person who robbed the Giant on December 4, 2012. 

Detective Armstrong also testified for the Commonwealth, and based 

upon this information, interviewed Sickle and obtained Sickle’s DNA profile. 

Sickle’s DNA profile matched one of the two DNA profiles found on the blue 

hooded sweatshirt. 

The jury convicted Sickle of two counts of robbery,1one count of 

terroristic threats,2and one count of possession of an instrument of crime.3

On July 9, 2015, Sickle was sentenced to 5 to 10 years’ imprisonment for his 

robbery—threatening serious bodily injury conviction, 1 to 2 years’ 

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1 18 Pa.C.S.A. §§ 3701(a)(1)(ii) and (iv).

2 18 Pa.C.S.A. § 2706 (a)(1).

3 18 Pa.C.S.A. § 907(a). 
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imprisonment for his terroristic threats conviction, and 1 to 2 years’ 

imprisonment for his possession of an instrument of crime conviction. The 

trial court imposed the terroristic threats conviction concurrent to the 

possession of an instrument of crime conviction, which was run 

consecutively to the sentence for robbery, for an aggregate sentence of 6 to 

12 years’ imprisonment. The trial court denied Sickle’s timely post-sentence 

motion. This timely appeal followed.

Sickle’s first argument on appeal is that the trial court erred in denying 

his post-sentence motion because the jury’s verdict was against the weight 

of the evidence. 

The weight of the evidence is exclusively for the finder of fact 

who is free to believe all, part, or none of the evidence and to 

determine the credibility of the witnesses. An appellate court 

cannot substitute its judgment for that of the finder of fact. 

Thus, we may only reverse the lower court’s verdict if it is so 

contrary to the evidence as to shock one’s sense of justice. 

Moreover, where the trial court has ruled on the weight claim 

below, an appellate court’s role is not to consider the underlying 

question of whether the verdict is against the weight of the 

evidence. Rather, appellate review is limited to whether the trial 

court palpably abused its discretion in ruling on the weight claim. 

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal 

citations omitted). 

When the challenge to the weight of the evidence is predicated 

on the credibility of trial testimony, our review of the trial court’s 

decision is extremely limited. Generally, unless the evidence is 

so unreliable and/or contradictory as to make any verdict based 

thereon pure conjecture, these types of claims are not 

cognizable on appellate review. 
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Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal 

quotes and citations omitted). 

Sickle contends that the verdict was not supported by the weight of 

the evidence because the Commonwealth’s version of events relied entirely 

upon Giannone’s testimony and Sickle’s DNA on the blue hooded sweatshirt 

found abandoned nearby following the robbery. See Appellant’s Brief, at 14. 

Sickle argues that Giannone’s inconsistent trial testimony clearly indicated 

that Giannone fabricated his testimony in exchange for leniency in his 

pending cases. See id., at 15-16. Additionally, Sickle alleges that Giannone 

planted the blue hooded sweatshirt near the Giant Food Store, as evidenced 

by the fact that the blue hooded sweatshirt recovered by the police did not 

match the blue hooded sweatshirt in the Giant surveillance videotape. See 

id., at 14. Based upon these inconsistencies in the evidence, Sickle argues 

that his convictions should be vacated and his case should be remanded for 

a new trial. See id., at 26. We disagree. 

The trial court addressed this issue as follows: 

[Sickle] contends that [Giannone’s] testimony was 

unreliable because Giannone “fabricated his testimony to curry 

favor with the Commonwealth for leniency in his own criminal 

matters, the sentencing for which was pending at the time of 

trial.” [Sickle] is entitled to no relief on this claim. Plainly, it is a 

common occurrence for witnesses to testify for the 

Commonwealth in hopes of gaining leniency for themselves, and 

this in no way entitles a defendant to appellate relief where- as 

here – the jury has been fully informed of the circumstances of 

the witness’s testimony. 

*****
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Plainly, it was for the jurors to decide what weight to give 

[Giannone’s] pending criminal matters in determining his 

credibility. 

[Sickle] also contends that the jurors should have deemed 

[Giannone’s] testimony incredible because [Giannone] testified 

that [Sickle] had told him he rode his bike to the Giant 

Supermarket on the night of the robbery, yet no bicycle was 

ever recovered by the police. Once again, defendant is entitled 

to no relief on his claim. Stated simply, there was no evidence 

presented at trial that authorities ever looked for a bicycle, and 

the defense was free to – and did- argue that the “lack” of this 

evidence at trial should be considered by the jurors in weighing 

[Giannone’s] credibility. It was for the jurors to weigh this factor 

in light of all of the evidence at trial, including – again – the DNA 

evidence. 

[Sickle] contends that [Giannone’s] testimony was 

unreliable because he testified that [Sickle] paid him three $20 

bills in exchange for giving him a ride after the robbery, yet 

[Hernandez] testified that no $20 bills were stolen from the cash 

register. [Sickle’s] contention entitles him to no relief. First, 

[Giannone] actually testified at trial that he has no present 

recollection as to what the denominations were of the bills with 

which [Sickle] paid him, although he acknowledged that he had 

told the police previously that it was three $20 bills and that his 

memory would have been fresher when he initially spoke to the 

police. Regardless the jurors could have determined either: 1) 

that [Giannone] was mistaken as to how he had been paid; 2) 

that [Hernandez] had been mistaken as to how he had been 

paid; or 3) that [Sickle] had paid [Giannone] with money he 

already had prior to the robbery. In short, there is nothing in this 

“contradiction” rendering the jury’s verdict inherently unreliable. 

It was for the jurors to resolve and weigh the evidence as they 

saw fit. 

Finally, [Sickle] challenged the timeline testified to by 

[Giannone] for the events of the night of the robbery and 

telephone calls [Giannone] testified he had exchanged with 

Sickle]. Plainly, it was for the jurors to resolve any contradictions 

in [Giannone’s] testimony in this regard. The jurors could readily 

have determined that [Giannone] was inaccurate as to specific 

times and details, yet still telling the essential truth as to what 

took place on the night of the robbery. 
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Trial Court Opinion, filed 2/16/16, at 9-10 (internal citations omitted). 

The record supports the trial court’s apt reasoning. Sickle’s claim that 

Giannone’s testimony was incredible was obviously rejected by the members 

of the jury. Further, while Sickle alleges that Giannone planted the blue 

hooded sweatshirt, this was also an argument he presented at trial that the 

jury rejected. The jurors were the sole judges of credibility at trial. 

Ultimately, the verdict depended upon the jury’s credibility determinations, 

which we are not entitled to review. Thus, Sickle’s claim that the evidence at 

trial was against the weight of the evidence lacks merit. 

Next, Sickle challenges the discretionary aspects of his sentence.4

Sickle contends that the sentence imposed by the trial court was manifestly 

unreasonable. To do so, Sickle relies upon two arguments. First, Sickle 

alleges that the trial court abused its discretion by imposing consecutive, 

high-end, standard range sentences, which raised the aggregate sentence to 

an excessive level in light of the criminal conduct at issue. See Appellant’s 

Brief, at 39. Next, Sickle argues that the trial court abused its discretion by 

imposing high end, standard range sentences without proper consideration 

of mitigating circumstances and Sickle’s rehabilitative needs. See id., at 37. 

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4

For ease of disposition, we have reviewed Sickle’s claims in a different 

order than presented in his appellate brief. 
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Sickle concedes that these arguments constitute challenges to the 

discretionary aspects of his sentence. See id. 

Sickle preserved these arguments concerning the discretionary aspects 

of his sentence through a post-sentence motion. Thus, he is in technical 

compliance with the requirements to challenge the discretionary aspects of 

his sentence. “A challenge to the discretionary aspects of a sentence must 

be considered a petition for permission to appeal, as the right to pursue such 

a claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 

(Pa. Super. 2004) (citation omitted). “Two requirements must be met before 

we will review this challenge on its merits.” Id. (citation omitted). 

“First, an appellant must set forth in his brief a concise statement of 

the reasons relied upon for allowance of appeal with respect to the 

discretionary aspects of a sentence.” Id. (citation omitted). “Second, the 

appellant must show that there is a substantial question that the sentence 

imposed is not appropriate under the Sentencing Code.” Id. (citation 

omitted). That is, “the sentence violated either a specific provision of the 

sentencing scheme set forth in the Sentencing Code or a particular 

fundamental norm underlying the sentencing process.” Commonwealth v. 

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).

We examine an appellant’s Rule 2119(f) statement to determine 

whether a substantial question exists. See id. “Our inquiry must focus on 

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the 
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merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f). In the present 

case, Sickle’s appellate brief contains the requisite Rule 2119(f) concise 

statement. See Appellant’s Brief, at 39-42. 

Sickle is essentially objecting to the consecutive nature of his 

sentence. “Although Pennsylvania’s system stands for individualized 

sentencing, the court is not required to impost the ‘minimum possible’ 

confinement.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 

2010) (citation omitted). The sentencing court “has the discretion to impose 

sentences consecutively or concurrently and, ordinarily, a challenge to this 

exercise of discretion does not raise a substantial question.” Id. (citation 

omitted). See also 42 Pa.C.S.A. § 9721(a). “The imposition of consecutive, 

rather than concurrent, sentences may raise a substantial question in only 

the most extreme circumstances, such as where the aggregate sentence is 

unduly harsh, considering the nature of the crimes and the length of 

imprisonment.” Moury, 992 A.2d at 171-72 (citation omitted). 

An “extreme circumstance” is not present here. The trial court acted 

well within its discretion in imposing consecutive sentences. Given Sickle’s 

twenty-year history of failed attempts at rehabilitation, the seriousness of 

his crime, and the emotional harm that Sickle inflicted on Hernandez, we 

find no abuse of discretion with the trial court’s conclusion that a sentence of 

6 to 12 years’ imprisonment is reasonable and not excessive. Accordingly, 

Sickle’s first challenge to the discretionary aspects of his sentence it without 

merit; it does not even raise a substantial question for our review. 
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Next, Sickle argues in his Rule 2119(f) statement that the trial court 

abused its discretion by imposing a sentence that is excessive considering 

the circumstances of the case without “proper” consideration of all the 

mitigating factors and Sickle’s rehabilitative needs. Appellant’s Brief, at 37. 

Sickle’s claim here is that the trial court did not adequately consider 

mitigating factors of record.5 This claim does not raise a substantial question 

for our review. See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 

(Pa. Super. 2014) (en banc), appeal denied, 104 A.3d 1 (Pa. 2014) 

(“[A]rguments that the sentencing court failed to consider the factors 

proffered in 42 Pa.C.S. § 9721 does present a substantial question whereas 

a statement that the court failed to consider facts of record, though 

necessarily encompassing the factors of § 9721, has been rejected.”)

Finally, Sickle argues that the trial court illegally imposed separate 

sentences for robbery—threatening serious bodily injury and terroristic 

threats, as those crimes should have merged for sentencing purposes. See

Appellant’s Brief, at 27.6 Sickle contends that the two statutes share the 

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5 The trial court reviewed the pre-sentence investigation report. See N.T., 

Sentencing,7/9/15, at 33. It was aware of, and considered, the mitigating 

factors.

6 Through his appellate brief, Sickle alleges that the trial court agrees with 

his position that the robbery sentence and terroristic threats sentence should 

have merged for sentencing purposes. See Appellant’s Brief, at 28-29. Our 

review of the entire record, however, reveals that the trial court was never 

even presented with this issue. Therefore, the trial court could not have 

agreed that the sentences should have merged. Waiver, however, is not an 

(Footnote Continued Next Page)
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elements of communication of threats, while the robbery statute requires the 

additional element of a theft context for the threat. See id. at 35. Thus, he 

contends, to sentence him separately on both crimes violates the rules 

relating to merger. 

“A claim that the trial court imposed an illegal sentence by failing to 

merge sentences is a question of law.” Commonwealth v. Orie, 88 A.3d 

983, 1020 (Pa. Super. 2014). Accordingly, our standard of review is de novo

and our scope of review is plenary. See Commonwealth v. Brougher, 978 

A.2d 373, 377 (Pa. Super. 2009). 

The Sentencing Code provides as follows. 

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. “Accordingly, merger is appropriate only when two 

distinct criteria are satisfied” (1) the crimes arise from a single criminal act; 

and (2) all of the statutory elements of one of the offenses are included 

within the statutory elements of the other.” Commonwealth v. Raven, 97 

A.3d 1244, 1249 (Pa. Super. 2014) (citation omitted). 

(Footnote Continued) _______________________

issue. “An illegal sentence can never be waived....” Commonwealth v. 

Randal, 837 A.2d 1211, 1214 (Pa. Super. 2003) (en banc) (citation 

omitted).
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Turning to the second element first, we find that robbery—threatening 

serious bodily injury subsumes terrorist threats. A person is guilty of robbery 

“if, in the course of committing a theft, he: threatens another with or 

intentionally puts him in fear of immediate serious bodily injury.” 18 

Pa.C.S.A. § 3701(a)(1)(ii). “An act shall be deemed ‘in the course of 

committing a theft’ if it occurs in an attempt to commit theft or in flight after 

the attempt or commission.” 18 Pa.C.S.A. § 3701(a)(2). Thus, to prove a 

robbery when there is no infliction of bodily injury, the Commonwealth must 

prove that the defendant, in the course of committing a theft, threatened 

another with immediate bodily injury, or intentionally put another in fear of 

immediate bodily injury.

Additionally, “[a] person commits the crime of terroristic threats if the 

person communicates, either directly or indirectly a threat to ... commit any 

crime of violence with intent to terrorize another.” 18 Pa.C.S.A. § 

2706(a)(1). “In order to prove a violation of this provision, the evidence 

must show: (1) that a threat to commit a crime of violence was made; and 

(2) that the threat was communicated with the intent to terrorize.” 

Commonwealth v. Hudgens, 582 A.2d 1352, 1357 (Pa. Super. 1990) 

(citation omitted). Assault is categorized as a crime of violence. See id. 

While the phrasing is not identical, putting another in fear of serious 

bodily injury, an element of the robbery offense, clearly subsumes 

communicating a threat to cause terror, which is an element of the 

terroristic threats offense. Further, we have previously found that where 
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terroristic threats were a necessary part of a robbery, the two crimes merge 

for sentencing purposes. See Commonwealth v. Walls, 449 A.2d 690 (Pa. 

Super. 1982). Thus, to determine if there is merger, we must determine 

whether the terroristic threats and robbery convictions arose out of the same 

criminal act. 

To answer this question, “[w]e must determine whether [the 

defendant’s] actions ... constituted a single criminal act, with reference to 

elements of the crime as charged by the Commonwealth.” Commonwealth 

v. Jenkins, 96 A.3d 1055, 1060 (Pa. Super. 2014) (internal quotation 

marks and citation omitted; brackets added). And to do that, we examine 

the criminal information, see id., at 1061, as well as the affidavit of 

probable cause and criminal complaint, see Commonwealth v. Kimmel, 

125 A.3d 1272, 1277 (Pa. Super. 2015) (en banc). 

Here, the information simply lists the offenses and the statutory 

elements. It does not charge distinct criminal acts. The criminal complaint 

and affidavit of probable cause likewise do not allege separate criminal acts. 

Further, at trial, the Commonwealth did not distinguish between which 

conduct was charged for each offense. Given the lack of factual detail in the 

criminal information in this case, and the Commonwealth’s failure to 

distinguish the conduct charged for each offense at trial, the crimes should

have merged for sentencing purposes. Accordingly, we reverse the judgment 

of sentence for terroristic threats at count 2 as it merges with robbery at 

count 1. 
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Where a case requires a correction of a sentence, this court has the 

option of either remanding for resentencing, or amending the sentence 

directly. See, e.g., Commonwealth v. Phillips, 946 A.2d 103, 115 (Pa. 

Super. 2008). We need not remand for re-sentencing; we have not upset 

the sentencing scheme. The trial court imposed the sentence for terroristic 

threats at count 2 to run concurrent to possession of an instrument of crime 

at count 8. See Sentencing Order, count 2 Terroristic Threats; N.T., 

Sentencing, 7/9/15, at 40. The judgment of sentence as corrected in this 

memorandum is affirmed in all other respects. 

Convictions affirmed. Judgment of sentence affirmed in part and 

reversed in part. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/6/2016