J-S40024-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

CHRISTOPHER MYERS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 2801 EDA 2019

Appeal from the Judgment of Sentence Entered January 3, 2018

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0009678-2016

BEFORE: SHOGAN, J., KING, J., and COLINS, J.*

MEMORANDUM BY KING, J.: FILED DECEMBER 10, 2020

Appellant, Christopher Myers, appeals nunc pro tunc from the judgment 

of sentence entered in the Philadelphia County Court of Common Pleas, 

following his jury trial convictions for robbery, theft, and simple assault.1 We 

affirm Appellant’s convictions but vacate and remand for resentencing.

The relevant facts and procedural history of this case are as follows. 

On September 25, 2016, near 15th Street and Belfield 

Avenue, at approximately 3:30 PM...Complainant...was on 

his way home from Rite Aid when [Appellant] came up to 

him and demanded money from him. ...Complainant refused 

to hand over his money and [Appellant] hit...Complainant on 

the left side of his face with his fist and knocked him to the 

ground. After...Complainant was on the ground, [Appellant] 

went in Complainant’s pocket and took his cellphone and 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3921(a), and 2701(a), respectively. 
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around $90 in United States currency. [Appellant] then 

proceeded to kick Complainant on the left side of the face. 

After [Appellant] kicked Complainant on the left side of his 

face, ...Complainant became unconscious. Upon regaining 

consciousness, ...Complainant was pulled up by his 

friend...and escorted home. As soon as he arrived home, an 

ambulance was called and Complainant was transported to 

Einstein Hospital at around 4:00 PM. 

...Complainant testified that he received an MRI while at 

Einstein Hospital and was kept for observation. 

...Complainant also testified...he couldn’t see out of his left 

eye, his nose was fractured up to his left eye, the lower 

portion of his face was fractured, and the top row of his 

teeth needed to be shaved and some of his teeth were dead. 

Due to Complainant’s lack of insurance, he left Einstein 

around 4:00 AM on September 26, 2016 and received 

further treatment from the Veteran’s hospital. At the 

Veteran’s hospital, Complainant received an additional MRI 

and was referred to an eye doctor and dentist for his 

injuries. 

(Trial Court Opinion, filed October 29, 2019, at 1-2). 

On September 27, 2016, police interviewed Appellant in connection with 

the incident. During the interview, Appellant told detectives that Complainant 

owed him $200.00. Appellant explained that he saw Complainant walking on 

15th Street and pulled over to ask Complainant for the money he owed. 

Appellant stated that Complainant refused to pay, and a fight ensued, during 

which Appellant punched Complainant and knocked him down. Appellant said 

he then took Complainant’s wallet, saw that Complainant only had $4.00, and 

threw the money and wallet back at him. 

Significantly, the day after the interview, September 28, 2016, 

Appellant was transported to the hospital due to a seizure. On March 1, 2017, 
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Appellant filed an omnibus pre-trial motion seeking to suppress any 

statements he made to the police during the interview. At a September 18, 

2017 hearing on the suppression motion, Appellant claimed he told detectives 

during the interview that he was lightheaded and had spots in his vision, and 

that he has a history of seizures. He asserted that the detectives told him he 

could receive medical care only after he completed the interview, and thus 

coerced him into waiving his Miranda2rights. Ultimately, the court denied 

the suppression motion. 

From September 19, 2017, to September 21, 2017, the court conducted 

a jury trial, at the conclusion of which the jury convicted Appellant of robbery, 

theft, and simple assault. The court sentenced Appellant on January 3, 2018, 

to five (5) to ten (10) years’ incarceration for the robbery offense, followed by

concurrent terms of three (3) years’ probation for theft and two (2) years’ 

probation for simple assault. 

Appellant filed a timely post-sentence motion for reconsideration of 

sentence on January 13, 2018, which the court denied on March 14, 2018. 

On June 26, 2018, Appellant timely filed a first petition pursuant to the Post 

Conviction Relief Act (“PCRA”),

3 seeking reinstatement of his direct appeal 

rights nunc pro tunc. The PCRA court granted the petition on September 18, 

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2 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 

3 42 Pa.C.S.A. §§ 9541-9546
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2019, and on September 26, 2019, Appellant filed a timely notice of appeal 

nunc pro tunc. On September 27, 2019, the court ordered Appellant to file a 

concise statement of errors complained of on appeal, pursuant to Pa.R.A.P. 

1925(b); Appellant timely complied on October 16, 2019. 

Appellant raises two issues for our review:

Whether the [trial court] was in error in not granting relief 

for denying Appellant’s Motion to Suppress[?]

Whether the [trial court] erred in not granting relief on the 

grounds that there was insufficient evidence to support the 

jury’s verdict[?]

(Appellant’s Brief at 6). 

In his first issue, Appellant argues his September 27, 2016 statement 

to police was not knowing, intelligent, and voluntary. Appellant maintains he 

informed the detectives during the interview that he was lightheaded and had

black spots in his vision. Appellant asserts that he also told the detectives of 

his history of seizures and that he had not been taking his prescribed 

medication. Appellant alleges that, rather than pausing the interview to 

provide medical assistance, the detectives promised he would receive medical 

treatment only after finishing with the interview. As a result, Appellant 

contends he was psychologically coerced into waiving his Miranda rights and 

providing the statement, believing that the more he cooperated, the sooner 

he would receive medical treatment. Appellant concludes this Court should 

reverse the trial court’s order denying his motion to suppress, vacate the 

judgment of sentence, and order a new trial. We disagree. 
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We review the denial of a suppression motion as follows:

Our standard of review in addressing a challenge to a trial 

court’s denial of a suppression motion is limited to 

determining whether the factual findings are supported by 

the record and whether the legal conclusions drawn from 

those facts are correct.

[W]e may consider only the evidence of the 

prosecution and so much of the evidence for the 

defense as remains uncontradicted when read in the 

context of the record as a whole. Where the record 

supports the findings of the suppression court, we are 

bound by those facts and may reverse only if the court 

erred in reaching its legal conclusions based upon the 

facts.

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en 

banc) (internal citations and quotation marks omitted). “It is within the 

suppression court’s sole province as factfinder to pass on the credibility of 

witnesses and the weight to be given their testimony.” Commonwealth v. 

Clemens, 66 A.3d 373, 378 (Pa.Super. 2013) (quoting Commonwealth v. 

Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)). 

Furthermore,

When determining the validity of a Miranda waiver, we 

employ a two-step inquiry. We first ask whether the waiver 

was voluntary in the sense of being the result of an 

intentional choice on the part of a defendant who was not 

subject to undue government pressure. If we conclude the 

waiver was voluntary, we then ask if the defendant was 

aware of the nature of the choice that he made by giving up 

his Miranda rights, i.e., whether it was knowing and 

intelligent. 

Commonwealth v. Knox, 219 A.3d 186, 193-94 (Pa.Super. 2019), appeal 

denied, ___ Pa. ___, 228 A.3d 256 (2020) (internal citations omitted). 
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Instantly, regarding Appellant’s suppression motion, the trial court 

reasoned:

During the suppression hearing, Detective Kenneth 

Flemming testified that on September 27, 2016, at the 

Northwest Detective Division, he brought [Appellant] up 

from the first floor to his office on the second floor for 

questioning. At around 11:20 PM, Detective Flemming and 

Detective Cannon began questioning [Appellant], providing 

him with his rights and asking if he was under the influence 

of any drugs, alcohol, medications, or narcotics. [Appellant] 

did not make any requests throughout the duration of the 

interview, he made no requests for food or water, or any 

request for medical attention. If [Appellant] had stopped 

and made any request during the interview, Detective 

Flemming testified that he would have noted it in 

[Appellant]’s statement. Detective Flemming did not recall 

anything indicating that [Appellant] had not been in the 

right condition to give a statement, instead noting that 

[Appellant] was “perfectly normal” during the questioning. 

The questioning lasted from 11:20 PM through 11:46 PM, a 

mere 26 minutes. At the conclusion of the interview, 

[Appellant] did not ask for any medical assistance or inform 

the detectives of any medical issues.

In contrast, [Appellant] testified at the suppression hearing 

that uniformed police officers came to retrieve him from his 

holding cell and asked if he was ready to speak to the 

detectives, to which he responded, “Yes.” [Appellant] 

claimed he was feeling lightheaded and seeing black spots 

during his questioning. [Appellant] claimed that he 

informed both detectives of his physical state and they told 

him to continue his statement and he would get treatment 

afterwards. [Appellant] further testified that he has 

suffered from seizures since he was 9 years old and that he 

had not been taking his seizure medication for about a 

month prior to this interrogation due to an issue with his 

medical insurance. [Appellant] explained that when he feels 

a seizure coming on, he feels lightheaded, sees black spots, 

and that lights begin to flash. During the interview with 

detectives, [Appellant] never stated that he was having a 

seizure nor did he lose consciousness during their 

conversation. [Appellant] acknowledged that he signed 
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each page of his written statement. However, at the 

suppression hearing, he claimed that he only signed his 

statement so he could receive medical treatment. 

The following morning, on September 28, 2016, [Appellant] 

suffered a seizure and an ambulance was requested around 

10:40 AM. The Philadelphia Fire Department EMS 

ambulance record indicated that [Appellant]’s status was 

normal and his neurological status was also normal. 

[Appellant] arrived at the Albert Einstein Medical Center at 

11:02 AM. The medical records indicated that [Appellant]’s 

level of consciousness was alert, his orientation was 

oriented times three, affect or behavior is alert, appropriate, 

calm, and cooperative, no evidence barriers to learning were 

present, and that [Appellant] denied fever, chills, nausea, 

vomiting, focal weakness, chest pain, shortness of breath, 

altered sensation, and abdominal pain. The medical report 

further noted that [Appellant] was alert and awake and was 

able to provide a history.

During the suppression hearing, the trial court found 

[Appellant]’s testimony incredible and the testimony of 

Detective Flemming credible. The trial court specifically 

found incredible that portion of [Appellant]’s testimony that 

he had no memory of what happened after he was 

questioned and returned to his cell. The court found this 

incredible especially since [Appellant] testified in detail as 

to his memory of his conversation with the detectives. The 

trial court stated that it was incomprehensible how 

[Appellant] could retain those details as to the statement he 

provided right before he was returned to his cell, but was 

unable to retain any memory after that until he awoke in 

the hospital. The trial court also found it incredible that 

[Appellant] would experience symptoms of an onset of a 

seizure and that the seizure would not occur until 12 hours 

later.

The trial court determined that [Appellant]’s waiver was 

voluntary, knowing, and intelligent based on [Appellant]’s 

...statement which failed to suggest that [Appellant] was not 

of clear mind and unable to understand the questions. The 

trial court also noted that [Appellant]’s testimony at the 

suppression hearing was that when he was taken to speak 

with the detectives, he was asked if he was ready to speak 
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with them, to which he responded, “Yes,” further proving 

that [Appellant]’s waiver was voluntary, knowing, and 

intelligent. 

(Trial Court Opinion at 7-9) (internal footnote omitted). We will not disrupt 

the court’s credibility determination in favor of Detective Flemming and 

against Appellant. See Clemens, supra. The testimony presented at the 

suppression hearing shows Appellant’s waiver of his Miranda rights was

knowing, intelligent, and voluntary. See Knox, supra. Thus, the court did 

not err in denying Appellant’s suppression motion. See Williams, supra. 

In his second issue, Appellant argues the evidence was insufficient to 

support his convictions. Regarding the robbery and theft convictions, 

Appellant contends the Commonwealth failed to show that any evidence was 

found on Appellant’s person, despite Complainant’s testimony that Appellant 

had taken his cellphone and $90.00. Concerning the simple assault 

conviction, Appellant maintains Complainant’s testimony concerning the

severity of the injury to his eye contradicted medical reports. Appellant also 

claims the Commonwealth failed to provide any evidence to support its 

contention that Appellant initiated the altercation. Rather, Appellant insists it 

was a “mutual fight.” Appellant concludes the evidence was insufficient to 

support his convictions, and this Court should grant relief.

4

 We disagree. 

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4 Throughout his argument, Appellant also challenges Complainant’s 

credibility, which implicates the weight of the evidence rather than the 

sufficiency of the evidence. See Commonwealth v. Price, 616 A.2d 681, 
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When examining a challenge to the sufficiency of evidence, our standard 

of review is as follows:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying [the above] test, we may not weigh the evidence 

and substitute our judgment for the fact-finder. In addition, 

we note that the facts and circumstances established by the 

Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may 

be resolved by the fact-finder unless the evidence is so weak 

and inconclusive that as a matter of law no probability of 

fact may be drawn from the combined circumstances. The 

Commonwealth may sustain its burden of proving every 

element of the crime beyond a reasonable doubt by means 

of wholly circumstantial evidence. Moreover, in applying the 

above test, the entire record must be evaluated and all 

evidence actually received must be considered. Finally, the 

[trier] of fact while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to believe 

all, part or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal 

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v. 

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)). 

The Crimes Code defines the offenses of robbery, theft, and simple 

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683 (Pa.Super. 1992) (explaining sufficiency challenge asks whether evidence 

exists on record to support conviction, whereas argument that witness’s 

account is not credible goes to weight). Appellant, however, did not raise a 

weight of the evidence claim in his post-sentence motion or at sentencing. 

Therefore, to the extent Appellant’s argument raises a weight of the evidence 

claim, it is waived. See Pa.R.Crim.P. 607(A)(1)-(3) (stating challenge to 

weight of evidence must be raised with trial court in oral or written motion 

before sentencing or in post-sentence motion). 
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assault, in pertinent part, as follows:

§ 3701. Robbery 

(a) Offense defined.—

(1) A person is guilty of robbery if, in the course of 

committing a theft, he:

* * *

(ii) threatens another with or intentionally puts him 

in fear of immediate serious bodily injury[.]

18 Pa.C.S.A. § 3701(a)(1)(ii). 

§ 3921. Theft by unlawful taking or disposition

(a) Movable property.―A person is guilty of theft if he 

unlawfully takes, or exercises unlawful control over, 

movable property of another with intent to deprive him 

thereof.

18 Pa.C.S.A. § 3921(a). 

§ 2701. Simple Assault

(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;

(2) negligently causes bodily injury to another with a 

deadly weapon;

(3) attempts by physical menace to put another in fear 

of imminent serious bodily injury[.]

18 Pa.C.S.A § 2701(a)(1)-(3). 

Instantly, the court addressed Appellant’s challenge to the sufficiency of 
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the evidence as it relates to his robbery and theft convictions as follows:

...[Appellant] demanded money from...Complainant 

and...Complainant refused. Complainant testified 

[Appellant] then proceeded to hit him on the left side of his 

face with his fist, knocking Complainant to the ground, took 

Complainant’s money and cell phone, and then kicked him 

in the face, causing him to lose consciousness. These facts 

are more than sufficient evidence to support the robbery 

and theft convictions beyond a reasonable doubt. 

[Appellant] unlawfully took Complainant’s money and 

cellphone by intentionally putting Complainant in fear of 

immediate serious bodily injury. Further, the taking was 

done with the intent to permanently deprive Complainant of 

his property. It is entirely believable that [Appellant]’s 

violent actions would reasonably place...Complainant in fear 

of immediate serious bodily injury, as the head is a fragile 

and crucial part of the body. The testimony that 

Complainant provided that [Appellant] kicked him, while he 

was on the ground, in this fragile and crucial part of the body 

certainly supports a threat of serious bodily injury during 

the course of the theft. 

(Trial Court Opinion at 10-11). Concerning the simple assault conviction, the 

court reasoned:

...[T]he jury clearly found...Complainant’s testimony as to his 

injuries to be credible. ...Complainant testified that he 

couldn’t see out of his left eye, the lower left side of his face

was fractured, and his nose was fractured up to his left eye, 

and the top row of his teeth needed to be shaved and some 

of his teeth were dead. Complainant further testified that 

he needed a root canal and continues to receive treatment 

for the injuries he sustained from [Appellant]’s beating. 

Although circumstantial, [Complainant]’s injuries were 

consistent with what would be expected of a punch and kick 

to the face. Based on the injuries Complainant sustained, it 

is evident that [Appellant] intentionally caused bodily injury 

to...Complainant. Therefore, the evidence was sufficient to 

support [Appellant]’s simple assault conviction as a 

misdemeanor in the second degree. 
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(Trial Court Opinion at 11-12) (internal citation omitted).5 Viewed in the light 

most favorable to the Commonwealth as verdict-winner, we agree with the 

court’s analysis that the evidence was sufficient to convict Appellant of 

robbery, theft, and simple assault. See 18 Pa.C.S.A. §§ 3701(a)(1)(ii); 

3921(a); 2701(a); Hansley, supra. Therefore, we affirm Appellant’s 

convictions. 

Nevertheless, we observe that Appellant previously argued in his postsentence motion and Rule 1925(b) statement, and the trial court and 

Commonwealth agree, that Appellant’s conviction for theft should have 

merged with robbery for sentencing purposes. This Court has explained:

Whether crimes merge for sentencing purposes implicates 

the legality of the sentence, which this Court can raise sua 

sponte. Therefore, our standard of review is de novo and 

our scope of review is plenary. Merger of sentences is 

governed generally by Section 9765 of the Sentencing Code, 

which provides:

§ 9765. Merger of sentences

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5

In the argument section of his brief, Appellant asserts some claims that the 

trial court opinion did not address, including: (1) the investigating officer 

testified that police did not recover Complainant’s belongings from Appellant; 

(2) the Commonwealth produced no evidence showing the amount of cash 

Complainant had before the incident; (3) Complainant’s medical records state 

that Complainant had no vision loss; and (4) the Commonwealth produced no 

evidence to show that Appellant initiated the altercation. Appellant failed to 

specify these particular points in his Rule 1925(b) statement, so they are 

waived. See Hansley, supra at 415 (explaining Rule 1925(b) statement 

must be specific enough for trial court to identify and address issues raised on 

appeal; concise statement “which is too vague to allow the court to identify 

the issues raised on appeal is the functional equivalent of no concise statement 

at all”; thus, if concise statement is too vague, court may find waiver).
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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. [T]he language of the legislature is 

clear. The only way two crimes merge for sentencing is if 

all elements of the lesser offense are included within the 

greater offense. ... 

* * *

To determine whether offenses are greater and lesserincluded offenses, we compare the elements of the 

offenses. If the elements of the lesser offense are all 

included within the elements of the greater offense 

and the greater offense has at least one additional 

element, which is different, then the sentences 

merge. If both crimes require proof of at least one 

element that the other does not, then the sentences 

do not merge. 

Commonwealth v. Watson, 228 A.3d 928, 941 (Pa.Super. 2020) (internal 

citations and quotation marks omitted). 

This Court has historically found that theft and robbery merge for 

sentencing purposes. Commonwealth v. Turner, 402 A.2d 542, 544

(Pa.Super. 1979) (explaining that by definition, robbery is committed “in the 

course of committing a theft”; therefore, robbery necessarily involves theft,

and offenses merge for sentencing purposes). Although we have not located 

a definitive, published decision that addresses the propriety of merging theft 

and robbery convictions since the adoption of Section 9765 (effective February 

7, 2003), recent unpublished decisions from this Court have continued to hold 
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that robbery and theft convictions merge for sentencing purposes. See, e.g.,

Commonwealth v. Rouse, 237 A.3d 493 (Pa.Super. 2020) (unpublished 

memorandum) (holding appellant’s robbery with threat of serious bodily injury 

conviction merged with his theft by unlawful taking conviction for sentencing 

purposes; vacating and remanding for resentencing).

6

 

Instantly, Appellant’s robbery and theft offenses arose from a single 

act—Appellant punching Complainant and taking his cellphone and money. 

During sentencing, however, the court imposed separate sentences for these 

crimes. As both convictions arose from the same criminal act, and the 

elements of theft are subsumed in the robbery offense as charged, theft 

constitutes a lesser-included offense of robbery. See Watson, supra. 

Consequently, Appellant’s robbery and theft convictions should have merged 

for sentencing purposes. Id.; 42 Pa.C.S.A. § 9765. Accordingly, we affirm 

Appellant’s convictions but vacate the judgment of sentence and remand for 

resentencing. See Commonwealth v. Thur, 906 A.2d 552 (Pa.Super. 

2006), appeal denied, 596 Pa. 745, 946 A.2d 687 (2008) (stating: “If our 

disposition upsets the overall sentencing scheme of the trial court, we must 

remand so that the court can restructure its sentence plan”).

Convictions affirmed. Judgment of sentence vacated. Case remanded 

for resentencing. Jurisdiction relinquished. 

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6 See Pa.R.A.P. 126(b) (unpublished non-precedential memoranda decisions 

of Superior Court filed after May 1, 2019, may be cited for persuasive value). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/10/2020