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Commonwealth of Pennsylvania v. Rory David Nero

December 11, 2012

COMMONWEALTH OF PENNSYLVANIA APPELLEE
v.
RORY DAVID NERO, JR. APPELLANT



Appeal from the Order Dated March 28, 2012 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002337-2007

The opinion of the court was delivered by: Mundy, J.:

J-S67033-12

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., and MUNDY, J.

OPINION BY MUNDY, J.:

Appellant, Rory David Nero, Jr., appeals from the March 28, 2012 order denying relief on his two remanded issues raised in his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.

After careful review, we affirm.

We previously summarized the factual and procedural background of this case as follows.

Appellant was arrested and charged with various offenses based on his participation in a "chop shop" operation. Specifically, Appellant would purchase "donor" vehicles and deliver them to a business owned by Thomas Black, Appellant's co-defendant, called BK Performance. Appellant would then obtain stolen vehicles and likewise deliver them to Black's business. Parts from the donor vehicles (i.e. ignition switches and windows) would then be removed and swapped with broken parts on the stolen vehicles that were damaged during the illegal acquisition of those cars. Additionally, Appellant participated in

J-S67033-12

removing VIN numbers and federal identification tags from the legally acquired donor vehicles and placing them on the stolen cars. Appellant then sold the stolen vehicles at automobile auctions.

Based on this conduct, Appellant was charged and convicted, following a jury trial, of one count of owning, operating or conducting a chop shop (Count 1); four counts of owning, operating or conducting a chop shop - illegally obtained/altered property (Counts 3, 7, 8, 9); one count of criminal conspiracy to own a chop shop (Count 10); four counts of receiving stolen property (Counts 12, 13, 16, 17), and four counts of theft by deception (Counts 20, 21, 22, 23). On September 22, 2008, [Appellant] was sentenced to an aggregate term of 64 to 124 months' incarceration. [Appellant] filed a direct appeal challenging the weight and sufficiency of the evidence, as well as a portion of the court's jury instructions. On July 7, 2009, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Nero, 981 A.2d 929 (Pa. Super. 2009)

(unpublished memorandum). Appellant did not petition for permission to appeal to our Supreme Court.

On June 1, 2010, Appellant filed a timely petition for post-conviction relief. Counsel was appointed and an amended petition was filed on Appellant's behalf. However, on September 7, 2010, the PCRA court denied Appellant's petition without a hearing.

Commonwealth v. Nero, 43 A.2d 523 (Pa. Super. 2012) (unpublished memorandum at 1-3) (footnote omitted) (Nero III).

Appellant filed a timely appeal from the September 7, 2010 order. On appeal, this Court vacated the September 7, 2010 order and remanded for new counsel due to counsel's conflict of interest as raised by Appellant. Commonwealth v. Nero, 26 A.2d 1192 (Pa. Super. 2011) (unpublished judgment order). After remand, new counsel was appointed, who filed an amended PCRA petition on April 25, 2011. After proper notice, the PCRA court dismissed Appellant's amended PCRA petition without a hearing on June 6, 2011.

Appellant again filed a timely notice of appeal raising a number of issues. On appeal, we held that Appellant had properly pled two issues of arguable merit, a potential Brady*fn1 violation and the legality of his sentence, raising legitimate factual issues. Nero III, supra at 4-9. Accordingly, on January 19, 2012, we vacated the PCRA court's order dismissing Appellant's PCRA petition and remanded for a hearing. Id. at 13. The PCRA court complied, conducting an evidentiary hearing on February 29, 2012 on

Appellant's Brady issue, and taking the legality of sentence issue under advisement. By order filed March 28, 2012, the PCRA court dismissed Appellant's amended PCRA petition. Appellant filed a timely notice of appeal on April 20, 2012.*fn2

On appeal, Appellant poses the following questions for our consideration.*fn3

A. Whether the sentencing court erred in failing to merge several of the criminal counts for purposes of sentencing resulting in an illegal sentence?

B. Whether the [C]ommonwealth committed a

Brady violation as to failure to disclose predispostion [sic] to favorable treatment of co-defendant in exchange for his testimony?

Appellant's Brief at 3.

We begin by noting the following standard of review, guiding our consideration of this appeal. "On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error." Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012) (citation omitted). "The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record." Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa. Super. 2011) (internal quotation marks and citation omitted), appeal denied, 38 A.3d 823 (Pa. 2012). "The PCRA court's factual determinations are entitled to deference, but its legal determinations are subject to our plenary review." Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009) (internal quotation marks and citations omitted).

In his first issue, Appellant avers the trial court imposed an illegal sentence when it failed to merge the receiving stolen property charges with the counts charging violation of subsection (2) of owning, operating or conducting a chop shop (owning, operating or conducting a chop shop - illegally obtained/altered property) for purposes of sentencing. Appellant's Brief at 6. Appellant claims that his four counts of receiving stolen property were lesser-included offenses relative to his four corresponding counts of owning, operating or conducting a chop shop - illegally obtained/altered property. Id. Appellant argues that the elements required to prove a charge of receiving stolen property ...


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