J-S07006-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

MICHAEL FUSCELLARO,

Appellant No. 999 EDA 2015

Appeal from the Judgment of Sentence Entered March 10, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0710551-2006

BEFORE: BENDER, P.J.E. , PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED MAY 11, 2018

Appellant, Michael Fuscellaro, appeals from the March 10, 2015 

judgment of sentence of 111⁄2 to 23 months’ incarceration, followed by 4 years’ 

probation, imposed after the trial court revoked a term of probation Appellant 

was serving for a robbery conviction. Appellant claims that his sentence for 

robbery is illegal because it exceeds the statutory maximum term for that

offense. After careful review, we affirm.

The facts of Appellant’s case are not necessary to our disposition of his 

appeal. We only note that on September 13, 2010, Appellant entered an open 

nolo contendere plea to robbery, graded as a second-degree felony, and other 

related offenses. That same day, the trial court sentenced him to 21⁄2 to 5 

years’ incarceration, followed by four years’ probation, for his robbery 

conviction. However, on September 17, 2010, the trial court vacated that 
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sentence and resentenced Appellant to a term of 2 to 4 years’ incarceration, 

with a consecutive term of 5 years’ probation. Due to procedural complexities 

that we need not discuss herein, this Court did not affirm Appellant’s judgment 

of sentence until November 20, 2013. Commonwealth v. Fuscellaro, 91 

A.3d 1290 (Pa. Super. 2013) (unpublished memorandum). Appellant did not 

petition for allowance of appeal with our Supreme Court. 

On March 13, 2013, while Appellant’s direct appeal was pending, the 

trial court found that he had violated the conditions of his probation. 

Consequently, the court revoked Appellant’s probationary sentence, and

resentenced him to a term of 11⁄2 to 4 years’ incarceration, followed by 2 years’

probation. Appellant did not file a timely direct appeal. 

However, on November 22, 2013, Appellant filed a pro se petition under 

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 941-9546, alleging, inter 

alia, that his robbery sentence was illegal. On March 10, 2015, the PCRA court

issued an order denying in part, and granting in part, Appellant’s PCRA 

petition. In regard to granting Appellant relief, the court reinstated his postsentence motion and direct appeal rights from the March 13, 2013 revocation 

sentence. That same day, Appellant filed a nunc pro tunc motion for 

reconsideration of his March 13, 2013 sentence. The court granted that 

motion and resentenced Appellant to 111⁄2 to 23 months’ incarceration, 

followed by 4 years’ of probation, for his robbery conviction. 
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Appellant filed a timely notice of appeal with this Court.1 He raises one 

issue for our review:

1. Did the court issue an illegal sentence for robbery when the 

combined custodial portion of the original sentence (two and 

one[-]half to five years[’] incarceration) and [the] split 

sentence for violation of probation (111⁄2 to 23 months[’] 

incarceration plus four years[’] probation) exceeded the 

maximum permissible sentence for a [second]-degree felony?

Appellant’s Brief at 2.

Essentially, Appellant complains that his current, split-sentence, added 

to his prior custodial sentence, exceeds the statutory maximum permissible 

for his robbery conviction. Appellant acknowledges that,

[w]hen determining whether two split sentences exceed the 

statutory maximum, a defendant is to be given credit for [the] 

custodial portion of the original sentence. If the custodial portion 

of the original sentence exceeds the statutory maximum when 

combined with the custodial and probationary portion of the 

violation of probation sentence, the sentence is illegal. 

Commonwealth v. Crump, 995 A.2d 1280 (Pa. Super. 2010).

Appellant’s Brief at 6-7. In arguing that his sentence is illegal under Crump, 

Appellant states that the maximum, custodial portion of his original sentence 

was five years’ incarceration. Id. at 7. He then adds that term to his current, 

split-sentence of 111⁄2 to 23 months’ incarceration and four years’ probation, 

____________________________________________

1 Although Appellant is clearly challenging the legality of the court’s March 10, 

2015 sentence, he filed this appeal from the PCRA court’s order denying in 

part, and granting in part, his PCRA petition, rather than from the sentencing 

order issued that same day. Because this was obviously an oversight by 

Appellant, we treat this appeal as stemming from his March 10, 2015 

judgment of sentence.
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contending that “the combined total” exceeds the 10-year statutory maximum 

term for robbery as a second-degree felony. Id. 

Appellant’s argument is meritless. He wholly ignores that his original 

sentence of 21⁄2 to 5 years’ incarceration for robbery was vacated just a few 

days after it was imposed, and he was resentenced to 2 to 4 years’ 

incarceration. See Reconsideration of Sentence Order, 9/17/10, at 1. Adding 

that 4-year, maximum term of incarceration to Appellant’s current, splitsentence of 111⁄2 to 23 months’ incarceration and four years’ probation, 

demonstrates that his total sentence is just under the 10-year, statutory 

maximum for his robbery conviction. Accordingly, Appellant’s sentence is not 

illegal.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/11/18