### J-S74044-16
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF PENNSYLVANIA
v.
DAVID BRACETTY

### Appellant : No. 2655 EDA 2015 Appeal

### from theJudgmentofSentence

### August 21, 2015 Inthe Court ofCommon Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-

### 0012080-2014 BEFORE: OTT, RANSOM, JJ., STEVENS, P.J.E.* MEMORANDUM BY RANSOM, J.: 

### FILED NOVEMBER

### 08, 

### 2016 David 

### Bracetty appeals 

### from the August 21, 2015 

### judgement of sentence imposed 

### following a non

### -jury trial finding him 

### guilty of 

### robbery, 

### theft by 

### unlawful 

### taking, receiving stolen 

### property and simple assault. 1 The 

### trial court imposed a sentence of two and one

### -half to 

### five 

### years' incarceration, followed by two

### years'probation

### for robberyto run 

### concurrent with two 

### five-year terms of probation imposed 

### for 

### theft by 

### unlawful taking and receiving stolen 

### property. We 

### affirm in 

### part and vacate in part. We 

### briefly summarize the 

### relevant facts and procedural 

### history as follows. On 

### August 8, 2014, around 

### 6:00 p.m., Appellant's ex-

### girlfriend (

### "the Victim") was standing on the corner

### with 

### their three-year-old 

### daughter and a 

### friend. See Notes of 

### Testimony, 

### 5/29/2015, at 7-8 ("N.T.

### ").

1 Respectively, 18 Pa.C.S. §§

### 3701(a)(1)(iv), 3921(a), 3925(a), 2701(a).
*FormerJustice speciallyassigned to

### the SuperiorCourt.

### J-S74044-16 Appellant approached the 

### Victim and did not 

### want the

### Victim's friend to go into the 

### apartment. See N.T. at 10. The 

### Victim wason her cellphone atthe time. 

### See id. at 7-8. 

### Appellant"became belligerent and 

### started grabbing at 

### [the Victim's 

### cellphone]." Id. at 8, 21. 

### Appellant

### "hitthe Victim in the face 

### with the 

### [electronic] tablet he was holding and continued to grab at her 

### phone." Trial Ct. Op., 

### 03/22/2016, at 2; N.T. at 7

### -9, 20. The 

### Victim hung up her call and proceeded to dial 911. 

### SeeTrial Ct. Op., 

### 03/22/2016, at 2; N.T. at 10, 21. As the Victim was on the phone 

### with the police, 

### Appellant 

### "eventually overpowered her and 

### took her 

### cellphone." Trial Ct. Op., 

### 03/22/2016, at 3. 

### Thereafter, according to the 

### Victim, she lay on the ground in a 

### fetal position, and 

### Appellant kicked her in the stomach two or 

### threetimes. 

### SeeTrial Ct. Op., 

### 03/22/2016, at 3; N.T. at 11. Around 

### 7:34 p.m., the Victim provided an 

### "informative" statement to Officer Silva, who prepared a domestic violence 

### report to 

### document the incident. 

### See N.T. 

### at 24, 27

### -28, 29

### -32; Official Domestic Violence Rpt., 

### 8/8/14. The 

### report indicates 

### that the Victim did not 

### report any specific 

### injuries and 

### that she did not have any 

### "visible 

### injury" at 

### that time. Id. at 33. The

### Victim's mother testified 

### thatAppellant 

### tooktwo bricks and broke her car and house windows between 

### 6:00 and 

### 7:00 p.m. on the same



## -2

### J-S74044-16 evening. 

### See

### id. at 38

### -39, 47.2 Around 

### 9:00 p.m., Officer Semet received

a call 

### about "a person 

### with a 

### gun" in

### the mother's neighborhood. Id. 

### at 54. When he 

### arrived, the mother approached the Officer and reported 

### Appellant for breaking the windows. Id. at 53. Officer Semet located 

### Appellant two blocks away

### from the 

### mother's house and placed him under arrest. Id. at 55. When searched, 

### Appellant did not have 

### the Victim's cellphone. Id. at 55-56. "The Victim never recovered her 

### cellphone." Trial Ct. Op., 

### 3/22/2016,at 3. Around 

### 12:15 a.m., on

### August 9, 2014, Detective King 

### interviewed the Victim, atwhich 

### time heobserved a bite 

### mark on the

### Victim's breast, as well
as scrapes and bruises on her

### feet and arms, 

### apparently suffered during the 

### earlier incidentwithAppellant. See

### id. at 56-60.3 According to 

### Appellant, theVictim embellished her 

### story. He 

### testified 

### that he had moved 

### out of Victim's 

### apartmentfour days before the incident and 

### that he approached the 

### Victim because he wanted to go to the store 

### with his 

### three-year-old 

### daughter. Id. at 78, 83-84. The 

### trial judge, however, found the

### Victim's story more credible. N.T. at 85. 

### Appellantwas

2 According to the 

### mother, Appellant "was staying with 

### [the Victim] in the 

### apartment but 

### they were 

### fighting all 

### of the 

### time." N.T. at 45. Despite 

### Appellant's objection based on inconsistencies in 

### the mother's story, the

### trial judge allowed the

### testimony. See

### id. at48.

3 

### Contrary to his normal practice, Detective King did not 

### photograph the Victim's injuries, nordid he record his 

### observations in his 

### report. See

### id. at 57, 59. 

## -3

### J-S74044-16
convicted of 

### robbery,

### theft by 

### unlawful

### taking, receiving stolen 

### property, and simpleassault. Sentencing occurred on 

### August21, 2015. On 

### August 28, 2015, 

### Appellant pro se filed an appeal 

### from the 

### judgment of sentence 

### without consulting counsel. Unaware 

### of the appeal, 

### trial counsel filed a 

### motion 

### for reconsideration of sentence on 

### August 31, 2015.On October 30, 2015, Appellant 

### timely filed a 

### court-ordered Pa.R.A.P. 

### 1925(b) 

### statement, challenging the 

### sufficiency and 

### weight of the evidence. On January 7, 2016, the 

### trial court denied 

### Appellant's motion 

### for reconsideration of sentence. 

### See Trial Ct. Order, 

### 1/7/2016 (citing Pa.R.Crim.P. 

### 720(B)(3)(c) (denying post-sentence motion by 

### operation of law

### after one hundred and

### twenty days)).4 In 

### this Court, 

### Appellant filed an 

### application to quash the pending, pro

se appeal and remand to preserve sentencing issues. 

### See Appellant's Application for Remand, 

### 1/12/2016. This Court denied 

### the petition 

### without prejudice as to 

### Appellant's 

### right to raise 

### additional issues in a 

### supplemental

4 We accept his appeal as 

### properly filed on January 7, 2016. 

### See 

### Commonwealth v. 

### Cooper, 27 A.3d 994, 1008 (Pa. 

### 2011). ("The 

### merely premature pro se appeal did not 

### divest the 

### trial court of

### jurisdiction to act upon the 

### timely post-sentence motion later filed by appellee's own counsel in accordance 

### with Criminal Rule 

### 720(A). "). 

### "Under the circumstances, where the proper, counseled appeal was quashed 

### administratively, the subsequently-assigned 

### Superior Court panel should have 

### treated the 

### premature appeal as if it had been filed 

### after denial 

### of the post-sentence motion in accordance

### with Pa.R.A.P. 

### 905(a)(5)." 

### Id. at 1008. 

## -4

### J-S74044-16
Pa.R.A.P. 

### 1925(b) statement. See Sup. Ct. Order, 2655 EDA 2015, 

### 2/3/2016. Subsequently, Appellant filed an amended Pa.R.A.P. 

### 1925(b) statement, 

### further preserving a challenge to 

### discretionary aspects 

### of his sentence. The

### trial courtfiled a responsiveopinion on March 22, 2016.5 

### Appellant contends 

### that the 

### trial court should not have imposed separatesentences onthe

### theft and 

### robbery charges because

### theyarose 

### out ofthe same 

### incident and becausethe

### theftcharges should have merged 

### with robbery. 

### See Appellant's Brief at 8-9. Specifically, 

### Appellant raises the following issue: Did the 

### trial court err when it failed to merge the 

### robbery and 

### theft convictions 

### for purposes of sentencing and 

### thus the sentences imposed on the 

### theft convictions are illegal and 

### must bevacated? 

### Appellant's briefat 2. "A claim 

### that crimes should have merged 

### for sentencing purposes raises a challengeto the 

### legality ofthe sentence. 

### Therefore, our standard of review is de novo and our scope of review is 

### plenary." 

### Commonwealth v. 

### Cianci, 130 A.3d 780, 782 (Pa. Super. 

### 2015) (quoting 

### Commonwealth v. 

### Quintua, 56 A.3d 399, 400 (Pa. Super. 

### 2012), appealdenied, 70A.3d 810 (Pa. 

### 2013) 

### (citation 

### omitted)). 

### "[W]here a case requires a 

### correction of a sentence, 

### this 

### [C]ourt has the option of 

### either remanding 

### for resentencing,

5 

### Appellant has abandoned the issues preserved in his amended Pa.R.A.P. 

### 1925(b) statement. 

## -5

### J-S74044-16

or amending the sentence 

### directly." 

### Commonwealth v. 

### Walls, 449 A.2d 690, 696 (Pa. Super. 1982). We discern two errors in 

### Appellant's sentence. First, 

### "the statutory definitions of the crimes of

### theft and receiving 

### render it 

### logically impossible 

### that one person be both the 

### thief and 

### receiver of the same 

### item[.]" Commonwealth v. 

### Tesse/, 500 A.2d 144, 151 (Pa. Super. 1985) (citing 

### Commonwealth v. 

### Simmons, 36 A.2d 624, 631 (Pa. Super. 

### 1975)). A person may be charged 

### with violating Sections 

### 3921(a) and 

### 3925(a) based
on a single 

### criminal act, however, "a 

### judgment of sentence can only be imposed on oneor the

### other." 

### Simmons, 336 A.2d at

### 631; 

### see 18 Pa.C.S. §§ 

### 3921(a), 3925(a).6 Here, the 

### trial court imposed 

### concurrent, five-year terms of probation for 

### theft by 

### unlawful taking and receiving stolen 

### property.7 Based on the facts 

### of this case, it is clear 

### that Appellant 

### took unlawful control of 

### the

6 

### Theft by 

### unlawful taking occurs when the accused 

### "takes, or exercises unlawful control over, movable 

### property of 

### another with intent to 

### deprive him 

### thereof." 18 Pa.C.S. § 

### 3921(a). Receiving stolen 

### property occurs when a person 

### "intentionally receives, 

### retains, or disposes of moveable 

### propertyof 

### another knowing 

### that it has been 

### stolen." 

### Id. at § 3925 

### (defining 

### "receiving"as acquiring possession).

7 In 

### supportofthe

### theft by

### unlawfultaking charge, the

### trial courtstates

### "it is 

### absolutely clear 

### from Victim's 

### testimony that Appellant unlawfully 

### took her cell phone 

### without her 

### permission." Trial Ct. Op., 

### 3/22/2016, at 6. In 

### support of the receiving stolen 

### property charge, the 

### trial court states 

### "it is 

### absolutely clear 

### thatAppellant received and retained the

### Victim's cell phone 

### without intent to 

### return itto her and he had knowledge 

### that the cell phone was 

### stolen." 

### Id. at 5-6. 

## -6

### J-S74044-16 Victim's cellphone. However, the 

### fact 

### that Appellant stole the phone precludes the imposition of a sentence 

### for the crime of receiving stolen 

### property. See 

### Simmons, 336 A.2d at 

### 631; 

### Tessel, 500 A.2d at 151. 

### Accordingly, the 

### trial court erred and we 

### vacate 

### that the portion of Appellant's sentenceimposed 

### for receiving stolen 

### property. Second, 

### Appellant's merger claim has 

### merit. To 

### determine whether convictions merge 

### for sentencing purposes, we 

### apply the following 

### test: 

### "merger is 

### appropriate only when two 

### distinct criteria are 

### satisfied: (1) the crimesarise 

### from a single 

### criminal act; and 

### (2) all 

### ofthe 

### statutoryelements of one of the offenses are included 

### within the 

### statutory elements of the 

### other." 

### Commonwealth v. 

### Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014) (citing 42 Pa.C.S. § 

### 9765); 

### Commonwealth v. 

### Baldwin, 985 A.2d 830, 833 (Pa. 

### 2009); 

### Commonwealth v. 

### Payne, 868A.2d 1257, 1263 (Pa. Super. 

### 2005). 

### If merger is 

### appropriate underthe elements based approach, the higher-graded offensesubsumesthe lower-graded offense 

### forsentencing purposes. 

### See 

### Cianci, 130 A.3d at 

### 782; 

### Commonwealth v. 

### Coppedge, 984A.2d 562, 564 (Pa. Super. 

### 2009) (citing 42 Pa.C.S.A. § 

### 9765). Here, the 

### trial court addressed the sufficiency of evidence regarding the

### theft in thefollowing manner: In review of the evidence, it is 

### absolutely clear 

### from 

### [the] Victim's 

### testimony 

### that Appellant unlawfully took her cell phone 

### without permission. He 

### forciblytookthe phone 

### from her during a physical 

### altercation. The

### Victim never had the phone 

### returned to her. 

## -7

### J-S74044-16
Trial Ct. Op. at 6. Regarding the robbery, the

### trial courtnoted: In review ofthe evidence, it is 

### absolutely clear

### that Appellant in the course of 

### committing a 

### theft, inflicted bodily 

### injury on the Victim and 

### physically removed her phone by force. The 

### Victim testified 

### thatduring the 

### altercationwith

...

### Appellant,

...

### Appellant proceeded to 

### hit theVictim with a 

### tablet while he was grabbing 

### for her phone. 

### Id. at 5 (discussing, 

### thereafter, additional evidence 

### supporting Appellant's separate conviction 

### for simple assault). Based upon the 

### trial court's description of the evidence 

### sufficient to 

### convict Appellant of these two crimes, we conclude 

### thatthese crimes arise 

### from a single 

### criminal act, 

### thus satisfying the

### firstcriterion ofthe merger test. 

### Jenkins, 96 A.3d at 1056. In our 

### view, the elements-based 

### criterion of the 

### merger 

### test is also satisfied. To 

### satisfy this criterion, we 

### must

### "focus[] solely on the elements of the offenses 

### for which a 

### criminal defendant has been 

### convicted." 

### Id. at 1058. Here, 

### Appellant was convicted of 

### robbery, graded as a 

### felony of the second degree. A person is 

### guilty of robbery if, in the course 

### ofcommitting a 

### theft, he

... 

### inflicts bodily 

### injury upon 

### another or 

### threatens anotherwith or 

### intentionally puts him in 

### fearofimmediate bodily 

### injury. 18 Pa.C.S. § 

### 3701(a)(1)(iv) (emphasis added); 

### seeCianci, 130 A.3d at 782 (

### "relevant question in 

### merger analysis now is 

### whether person can 

### commit
onecrime

### without also 

### committing other crime and vice

### -versa, regardless of 

### whether crimes arose 

### from same set of facts. "). 

### Appellant was also convicted of

### theft by

### unlawful 

### taking, graded as a

### first-degree misdemeanor. 

## -8

### J-S74044-16
A person is 

### guilty of 

### theft if he 

### unlawfully takes, or exercises 

### unlawful control over, movable 

### propertyofanother with 

### intentto 

### deprive him 

### thereof. 

### Id. at § 

### 3921(a). We conclude 

### that the 

### statutory elements of 

### "theft by 

### unlawful 

### taking," as defined in Section 

### 3921(a), are necessary to establish the 

### relevant 

### statutory elementof robbery, 

### i.e., "in the course 

### of 

### committing

a

### theft." 18 Pa.C.S. § 

### 3701(a)(1)(iv). For these reasons, 

### Appellant's conviction 

### for 

### theft by 

### unlawful taking must merge 

### for sentencing purposes into his 

### conviction 

### for robbery. Accordingly, we

### vacate

### that portion of

### Appellant's sentence imposed

### for

### theft by 

### unlawfultaking.8 Judgment of sentence 

### for robbery affirmed. Judgments of sentence 

### for receiving stolen 

### property and

### theft by

### unlawful takingvacated.

8 The 

### Commonwealth asserts

### thatAppellant

### "committed at leastsixseparate acts 

### of criminal violence against 

### [the Victim] when he stole her cell phone. 

### Commonwealth's Brief at 7. According to the Commonwealth, these separate acts preclude 

### merger in 

### Appellant's case. 

### Id. at 8. We disagree. 

### Appellant's robbery and 

### theft charges arise 

### from a single act 

### of 

### thievery during which

### Appellant inflicted bodily 

### injury upon 

### theVictim. To the 

### extent Appellant committed additional acts of

### violence, such acts are 

### irrelevant to our 

### merger analysis, as made clear by the 

### trial court opinion. 

### SeeTrial Ct. Op. at 5-6 (discussing the 

### sufficiency of evidence 

### for robbery and 

### theft), 7 (discussing the 

### sufficiencyofthe evidence

### forsimpleassault). 

## -9

### J-S74044-16

Judgment Entered.


## J:seph D. 

### Seletyn, Prothonotary
Date: 

### 11/8/2016

- 10 -