J-S42027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

GEFFREY DESIR

Appellant No. 463 EDA 2015

Appeal from the PCRA Order February 6, 2015

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0002442-2013

 CP-48-CR-0002443-2013

BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 24, 2015

Appellant, Geffrey Desir, appeals from the February 6, 2015 order, 

dismissing his petition for relief filed pursuant to the Post Conviction Relief 

Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.

The PCRA court summarized the relevant factual and procedural 

background of this case as follows.

On May 13, 2013, [Appellant] entered the Freeman 

Jewelers store at Palmer Park Mall in Palmer 

Township, Northampton County, Pennsylvania, 

where he attempted to obtain a line of store credit in 

the name of Darren Moss, using a pre-paid debit 

card and New York State driver’s license in the name 

of Darren Moss, signing a credit application in that 

name. [Appellant] had, prior [to] this occasion, used 

the identifying information of Darren Moss to 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
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purchase a pre-paid debit card bearing the name of 

Darren Moss from a Walmart or CVS store. That 

debit card was then used by [Appellant] as a means 

of proving the creditworthiness of Darren Moss for 

[the purpose] of obtaining credit at the jewelry 

store. When [Appellant] was apprehended in 

connection with these crimes, he was found to be in 

possession of items of jewelry valued at $13,180 

that he had obtained from the Littman Jewelers store 

using the same fraudulent means.

On September 19, 2013, [Appellant] pled 

guilty to one count of access device fraud, one count 

of identity theft, and one count of resisting arrest 

with respect to the Freeman Jewelers incident, as 

well as one count of receiving stolen property with 

respect to the items of jewelry found in his 

possession. Immediately following the guilty plea, 

[Appellant] was sentenced as follows: on the charge 

of access device fraud, 12-24 months in state prison 

plus a $500 fine; on the charge of identity theft, 12-

24 months in state prison plus a $500 fine; on the 

charge of resisting arrest, 2-12 months in state 

prison plus a $250 fine; and on the charge of 

receiving stolen property, 12-24 months in state 

prison plus a $250 fine. [Appellant]’s sentence for 

identity theft was run consecutive to his sentence for 

receiving stolen property, with all other sentences 

running concurrently, for an aggregate sentence of 

24-48 months in state prison.

PCRA Court Opinion, 2/6/15, at 1-2. Appellant filed a timely post-sentence 

motion on September 27, 2013, which the trial court denied on October 15, 

2013.
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Appellant filed a premature pro se PCRA petition on October 22, 2013.1 

The PCRA court appointed counsel, who filed a motion to withdraw as 

counsel pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and 

their progeny. On March 7, 2014, the PCRA court entered an order 

dismissing his PCRA petition and granted counsel’s petition to withdraw. 

Appellant did not file a notice of appeal in this Court. On April 21, 2014, 

Appellant filed a motion for reconsideration of sentence, which the trial court 

denied the same day.2 Appellant filed a timely pro se notice of appeal to this 

Court, which was docketed at 1590 EDA 2014. On November 17, 2014, 

Appellant filed a counseled application in this Court to discontinue his 

appeal, which we granted on December 4, 2014.3

____________________________________________

1

In the interim, Appellant filed pro se untimely notices of appeal from his 

judgment of sentence on December 2, 2013, which were docketed in this 

Court at 3363 EDA 2013 and 3364 EDA 2013. On February 3, 2014, this 

Court entered an order dismissing the appeal at 3363 EDA 2013 as 

duplicative of the appeal at 3364 EDA 2013. Superior Court Order, 3363 

EDA 2013, 2/3/14, at 1. On March 3, 2014, this Court entered an order 

quashing the appeal at 3364 EDA 2013 as untimely filed. Superior Court 

Order, 3364 EDA 2013, at 1. Appellant did not file a petition for allowance 

of appeal with our Supreme Court.

2

It appears from the certified record that the trial court did not treat this 

filing as a PCRA petition.

3 We note that our Supreme Court’s general rule is that “when an appellant's 

PCRA appeal is pending before a court, a subsequent PCRA petition cannot 

be filed until the resolution of review of the pending PCRA petition by the 

highest state court in which review is sought, or upon the expiration of the 

(Footnote Continued Next Page)
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In the interim, Appellant filed a counseled PCRA petition on October 

28, 2014. Appellant filed an amended PCRA petition on November 14, 2014. 

On February 6, 2015, the PCRA court entered an order denying Appellant’s 

PCRA petition. On February 13, 2015, Appellant filed a timely notice of 

appeal.4

On appeal, Appellant raises the following two issues for our review.

I. [Whether t]he offense of identity theft, 18 

Pa.C.S.A. § 4120(a) merges with the offense of 

access device fraud, 18 Pa.C.S.A. 

§ 4106(a)(1)(ii) such that the sentencing of a 

defendant on both offenses constitutes an 

illegal sentence[?]

II. [Whether t]he offenses of identity theft and 

access device fraud to which Appellant pleaded 

guilty arose out of a single criminal act[?]

Appellant’s Brief at 4.

We begin by noting our well-settled standard of review. “In reviewing 

the denial of PCRA relief, we examine whether the PCRA court’s 

(Footnote Continued) _______________________

time for seeking such review.” Commonwealth v. Lark, 746 A.2d 585, 

588 (Pa. 2000). However, as noted above, the PCRA court never treated 

Appellant’s April 21, 2014 motion for reconsideration of sentence as a PCRA 

petition. Furthermore, due to Appellant’s discontinuance of the appeal from 

the trial court’s order denying said motion, this Court never had an 

opportunity to opine as to whether said motion should have been treated as 

a PCRA petition. Based on these considerations, we conclude that Lark’s 

rule is not implicated in this case, as when the instant PCRA petition was 

filed on October 28, 2014, Appellant did not have any PCRA appeals pending 

in this Court.

4 Appellant and the PCRA court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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determination is supported by the record and free of legal error.” 

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation 

marks and citation omitted). “The scope of review is limited to the findings 

of the PCRA court and the evidence of record, viewed in the light most 

favorable to the prevailing party at the trial level.” Commonwealth v. 

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled 

that a PCRA court’s credibility determinations are binding upon an appellate 

court so long as they are supported by the record.” Commonwealth v. 

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this 

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth 

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

Appellant’s issues on appeal only concern the doctrine of merger. A 

claim that crimes should have merged for sentencing purposes raises a 

challenge to the legality of the sentence. Commonwealth v. Williams,

980 A.2d 667, 672 (Pa. Super. 2009), appeal denied, 990 A.2d 730 (Pa. 

2010). We begin by noting that a challenge to the legality of the sentence 

can never be waived and may be raised by this Court sua sponte.

5

 

____________________________________________

5 We note that although Appellant raised this same merger issue in his brief 

in his last appeal at 1590 EDA 2014, this Court never reached a decision on 

the question since the appeal was discontinued. As a result, the claim is not 

previously litigated within the meaning of the PCRA. See generally 42 

Pa.C.S.A. §§ 9543(a)(3), 9544(a)(2). In addition, because merger issues 

pertain to the legality of the sentence, the waiver provisions at Section 

(Footnote Continued Next Page)
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Commonwealth v. Orellana, 86 A.3d 877, 883 n.7 (Pa. Super. 2014) 

(citation omitted); see also Commonwealth v. Borovichka, 18 A.3d 

1242, 1254 n.8 (Pa. Super. 2011) (stating, “[a] challenge to the legality of a 

sentence ... may be entertained as long as the reviewing court has 

jurisdiction[]”). It is also well established that “[i]f no statutory 

authorization exists for a particular sentence, that sentence is illegal and

subject to correction.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. 

Super. 2014) (citation omitted). “An illegal sentence must be vacated.” Id. 

“Issues relating to the legality of a sentence are questions of law[.] ... Our 

standard of review over such questions is de novo and our scope of review is 

plenary.” Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) 

(citations omitted), vacated on other grounds, 111 A.3d 168 (Pa. 2015).

In examining whether Appellant’s offenses should have merged, we 

consider the following. 

The preliminary consideration [in determining 

merger for sentencing purposes] is whether the facts 

on which both offenses are charged constitute one 

solitary criminal act. If the offenses stem from two 

different criminal acts, merger analysis is not 

required. If, however, the event constitutes a single 

criminal act, a court must then determine whether or 

not the two convictions should merge. 

(Footnote Continued) _______________________

9544(b) do not apply. Therefore, although Appellant could have raised his 

merger claim previously, it is not waived. See generally id. § 9544(b).
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Commonwealth v. Walls, 950 A.2d 1028, 1031 (Pa. Super. 2008) 

(brackets in original), appeal denied, 991 A.2d 313 (Pa. 2010). 

Furthermore, in order for two convictions to merge, the elements of the 

lesser-included offense must be subsumed by the elements of the greater 

offense. Specifically, Section 9765 of the Sentencing Code provides as 

follows.

§ 9765. Merger of sentences

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 [Appellant] 

only on the higher graded offense.

42 Pa.C.S.A. § 9765.

As it is dispositive of the instant appeal, we need only address 

Appellant’s second issue, i.e., whether the offenses here arose from one 

single criminal act. Appellant avers that the offenses to which he pled guilty, 

access device fraud and identity theft arose from one singular criminal act. 

Appellant’s Brief at 21.

When considering whether there is a single criminal 

act or multiple criminal acts, the question is not 

whether there was a break in the chain of criminal 

activity. This issue is whether the actor commits 

multiple criminal acts beyond that which is necessary 

to establish the bare elements of the additional 

crime, then the actor will be guilty of multiple crimes 

which do not merge for sentencing purposes.
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Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa. Super. 2012) 

(internal quotation marks and citations omitted), appeal denied, 63 A.3d 776 

(Pa. 2013).

In this case, the information filed by the Commonwealth alleges that 

for access device fraud, Appellant used “an American Express debit card with 

knowledge that the card belonged to another person, namely Darren Moss, 

who did not authorize that act, who did not authorize its use.” Criminal 

Information, 8/16/13, at 1. For the charge of identity theft, the 

Commonwealth alleges that Appellant “was in possession of one (1) New 

York State driver’s license ... issued to Darren Moss, one (1) New Jersey 

driver’s license ... issued to Peter Gatto, one (1) American Express debit card 

issued to Darren Moss, and one (1) American Express debit card issued to 

Peter Gatto.” Id. at 3.

The PCRA court concluded that the offenses to which Appellant pled 

guilty did not arise from a single criminal act and thus the merger doctrine 

does not apply.

At the time of his plea, [Appellant] admitted 

that he used the fraudulently obtained pre-paid debit 

card in Darren Moss’s name – along with Darren 

Moss’s driver’s license – as a means of establishing 

creditworthiness to obtain store credit in the name of 

Darren Moss at the Freeman Jewelers store. Thus[,] 

it is clear from his plea that [Appellant] admitted to 

using an access device – a debit card – in an attempt 

to obtain property with knowledge that the access 

device was issued to another person who had not 

authorized its use.
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Accordingly, it is clear that [Appellant]’s pleas 

to the charges of identity theft and access device 

fraud were predicated on two separate factual bases.

PCRA Court Opinion, 2/6/15, at 5.

We conclude the record supports the PCRA court’s findings. Here the 

criminal information alleges that Appellant committed access device fraud 

utilizing a prepaid American Express debit card, and identity theft using a 

New York State driver’s license. In our view, this is sufficient to show that 

the two offenses here did not arise from a singular criminal act. See

Commonwealth v. Jenkins, 96 A.3d 1055, 1062 (Pa. Super. 2014) 

(concluding that the defendant’s convictions stemmed from multiple criminal 

acts based on the Commonwealth’s criminal information), appeal denied, 

104 A.3d 3 (Pa. 2014). Therefore, the PCRA court correctly concluded that 

Appellant’s sentences did not merge.6

Based on the foregoing, we conclude Appellant’s sole issue on appeal 

is devoid of merit. Accordingly, the PCRA court’s February 6, 2015 order is 

affirmed.

Order affirmed.

____________________________________________

6

In light of our conclusion that Appellant’s offenses did not arise from a 

singular criminal act, we express no opinion on whether identify theft and 

access device fraud are lesser-included offenses of each other.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/24/2015