February 26, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
BILLY WHITE, Appellant
Appeal from the Judgment of Sentence of February 8, 2013 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0002429-2012
BEFORE: GANTMAN, OLSON AND WECHT, JJ.
Appellant, Billy White, appeals from the judgment of sentence entered on February 8, 2013. We vacate Appellant's sentence in part. Specifically, we vacate that portion of Appellant's judgment of sentence, wherein Appellant received a concurrent term of one to three years in prison for simple possession of cocaine. In all other respects, Appellant's judgment of sentence is affirmed. Further, since our ruling does not disturb the trial court's sentencing scheme, we will not remand this case for resentencing.
The trial court has clearly and ably summarized the underlying facts of this case. As the trial court explained:
On October 18, 2011, Appellant ditched his vehicle in a private driveway off of Egypt Road  in Lower Providence Township, Montgomery County. A search of the vehicle uncovered drugs and drug paraphernalia. An investigation led to Appellant as the operator of the vehicle and to his arrest.
[Appellant's] two-day jury trial began on November 28, 2012 and[, during the trial, the following facts were established]. . . .
[At approximately] 2:00 a.m. on October 18, 2011, Officer Richard Aston of the Lower Providence Township Police Department responded to a 911 call of a suspicious and abandoned vehicle in the driveway of a private residence located at 2719 Egypt Road, which did not belong to the homeowners and was not authorized to be on that property. The vehicle was the same black Acura that the officer had followed on Egypt Road just five minutes before the 911 call was dispatched. Upon arriving at the scene, Officer Aston parked his vehicle so that it blocked the driveway. He observed that no one was in or around the vehicle, and once back-up [officers] arrived[, the officers commenced a search for the driver. The search] was unsuccessful. . . .
Officer Aston opened  the driver's side door in an attempt to locate identification cards in the center console, and he smelled a profound odor of fresh marijuana and [observed] flakes of marijuana on the driver's side floor mat. No further search was conducted. . . . Officer Aston  secure[d] the vehicle so that he could obtain a search warrant.
Later in the day [on] October 18, 2011, Detective Michael Jackson of the Lower Providence Township Police Department was assigned to investigate [the] case. As the lead investigator[, Detective Jackson] interviewed Kimberly White, the registered owner of the vehicle. During that interview[, ] the detective obtained Ms. White's consent to search the vehicle. Detective Jackson conducted the search. In the center console[, ] the detective found the bag of suspected marijuana that Officer Aston had already observed, a cell phone, a Pennsylvania State Identification card, a casino card, a Social Security card, [and] a bank card[. Every one of these items] belong[ed] to Appellant. The search also revealed[, ] hidden in the CD changer compartment[, ] numerous bags of what the detective believed to be both powder and crack cocaine. Specifically, there were 23 packets of crack cocaine and about 15 bags of powder cocaine. The search also turned up a marijuana grinder in the glove compartment and an empty firearms magazine in the trunk.
[Appellant was later arrested and charged with possession of cocaine with the intent to deliver, possession of cocaine, possession of marijuana, and possession of drug paraphernalia.
At trial, Toreyn Tuggle, Appellant's then on[-again]/off[-]again girlfriend, testified that [Appellant] came to her house after 1:30 a.m. on October 18, 2011 and told her that he ditched his vehicle on Egypt Road because there was a cop behind him and he [did not] have a driver's license. A few days later, Appellant confessed to Ms. Tuggle that he ditched the vehicle because there was a gun in the engine compartment. The testimony of Appellant's sister, Anitria White, also implicated Appellant as the driver of the vehicle on October 18, 2011.
Additionally at trial, the Commonwealth presented the expert testimony of Detective David Holtzman of the Montgomery County Detective Bureau, assigned to the Narcotics Enforcement Team. Detective Holtzman opined that the marijuana was possessed for personal use[, ] whereas the cocaine was possessed with the intent to deliver.
Trial Court Opinion, 4/18/13, at 1-4 (internal citations omitted).
Further, during trial, Appellant expressly stipulated to the chain of custody of the evidence and to the validity of a National Medical Services Laboratory (hereinafter "NMS Laboratory") report. The NMS Laboratory report declared that the company weighed and tested the alleged cocaine and marijuana. As the report declared, testing revealed that the alleged cocaine "[was], in fact, cocaine. It was 10.53 grams of cocaine. And the marijuana was, in fact, marijuana." N.T. Trial, 11/28/12, at 63-65.
At the conclusion of trial, the jury found Appellant guilty of all charges.
On December 3, 2012, the Commonwealth served Appellant with notice that it intended to seek imposition of the five-year mandatory minimum sentence, as provided in 18 Pa.C.S.A. § 7508(a)(2)(ii). In relevant part, this sub-section provides:
A person who is convicted of violating section . . . (30) . . . of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance or a mixture containing it is classified in Schedule I . . . under section 4 of that act and is a narcotic drug shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
(ii) when the aggregate weight of the compound or mixture containing the substance involved is at least ten grams and less than 100 grams; three years in prison and a fine of $15, 000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: five years in prison and $30, 000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity.
18 Pa.C.S.A. § 7508(a)(2)(ii).
On February 8, 2013, Appellant proceeded to sentencing. The trial court sentenced Appellant to the mandatory minimum sentence of five to ten years in prison for the possession of cocaine with the intent to deliver conviction because Appellant possessed 10.53 grams of cocaine and Appellant had a prior conviction for possession of a controlled substance with the intent to deliver. N.T. Trial, 11/28/12, at 63-65; N.T. Sentencing, 2/8/13, at 3. However, the trial court then mistakenly sentenced Appellant to a concurrent term of one to three years in prison for the possession of cocaine conviction. N.T. Sentencing, 2/8/13, at 19.
Appellant filed a notice of appeal and now claims:
Is the concurrent sentence of one to three years of total incarceration for Appellant's conviction of possession of ocaine an illegal sentence where the jury found him guilty of both possession of cocaine with intent to deliver and possession of cocaine and where the trial court sentenced Appellant to the mandatory minimum term of five to ten years of incarceration on the possession with intent to deliver charge?
Appellant's Brief at 4.
At the outset, even though Appellant did not raise his illegal sentencing claim in his court-ordered Pennsylvania Rule of Appellate Procedure 1925(b) concise statement of errors complained of on appeal, "challenges to an illegal sentence can never be waived and may be raised sua sponte by this Court." Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa.Super. 2013) (internal quotations and citations omitted). Therefore, we will consider the claim on appeal.
"Whether Appellant's convictions merge for sentencing is a question implicating the legality of Appellant's sentence. Consequently, our standard of review is de novo and the scope of our review is plenary." Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).
Pennsylvania's merger doctrine is codified at 42 Pa.C.S.A. § 9765. This statute provides:
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.
As our Supreme Court has explained, the "mandate of [Section 9765] is clear. It prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other." Baldwin, 985 A.2d at 833.
Here it is obvious – and the Commonwealth concedes – that, for sentencing purposes, Appellant's possession of cocaine conviction merged with Appellant's possession of cocaine with the intent to deliver conviction.As such, we must vacate Appellant's one-to-three year sentence for simple possession of cocaine.
We observe that Appellant's one-to-three year sentence for simple possession of cocaine was to run concurrent to Appellant's five-to-ten year sentence for possession of cocaine with the intent to deliver. Given this fact, our disposition does not disturb the trial court's overall sentencing scheme. We will not remand this case for resentencing. Commonwealth v. Robinson, 817 A.2d 1153, 1163 n.14 (Pa.Super. 2003) (holding: "our disposition does not upset the [trial] court's sentencing scheme as the sentence we reverse here had been ordered to run concurrent to the sentence imposed on [another] conviction. Under these circumstances, there is no need to remand for resentencing").
Judgment of sentence vacated in part. Jurisdiction relinquished.