Opinion
J-S13007-17 No. 1158 EDA 2016
04-18-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ISAAC BILAL PEARSON, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered March 7, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004988-2015 BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J. MEMORANDUM BY BENDER, P.J.E.:
Former Justice specially assigned to the Superior Court. --------
Appellant, Isaac Bilal Pearson, appeals from the judgment of sentence of an aggregate term of 17 to 34 years' incarceration, imposed after a jury convicted him of two counts of trafficking in individuals, 18 Pa.C.S. §§ 3011(a)(1) and (a)(2), promoting prostitution, 18 Pa.C.S. § 5902(b)(3), and criminal use of a communication facility, 18 Pa.C.S. § 7512(a). After careful review, we affirm.
We need not reiterate the lengthy factual history of this case, as the trial court provided a detailed summary of the facts underlying Appellant's convictions in its April 4, 2016 opinion denying his post-sentence motions, which the court adopted for purposes of its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion (TCO), 4/4/16, at 3-7; see also Trial Court Rule 1925(a) Opinion, 4/27/16, at 2-3 (adopting its April 4, 2016 opinion to address the claims Appellant raises on appeal). We need only note that herein, Appellant sets forth a three-page Statement of the Questions Presented, in which he raises four issues that can be paraphrased as follows:
1. Was the verdict against the weight of the evidence?See Appellant's Brief at 4-6.
2. Did the court consider improper facts in imposing statutory maximum sentences for each of Appellant's convictions?
3. Did Appellant's conviction of promoting prostitution merge with his conviction of trafficking in individuals?
4. Did the court err in failing to suppress evidence seized from Appellant's cell phones, where the search warrant stated it was to be executed no later than 10:29 a.m. on October 2, 2015, but the warrant was not executed until October 7, 2015?
We have reviewed the thorough and well-reasoned opinion drafted by The Honorable Maria L. Dantos of the Court of Common Pleas of Lehigh County. We conclude that Judge Dantos's opinion accurately and thoroughly disposes of the first two issues raised by Appellant, in which he challenges the weight of the evidence to sustain his convictions, and the discretionary aspects of his sentence. See TCO at 2-11. Accordingly, we adopt Judge Dantos's decision as our own on those two issues.
In Appellant's third issue, he contends that his conviction for promoting prostitution should have merged with his conviction for trafficking individuals. This claim implicates the legality of Appellant's sentence. See Commonwealth v. Baldwin , 985 A.2d 830, 833 (Pa. 2009) ("Whether [an] [a]ppellant's convictions merge for sentencing is a question implicating the legality of [the] [a]ppellant's sentence."). The statute governing the merger of offenses for sentencing purposes states:
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. § 9765. In other words, section 9765 "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, Appellant's underdeveloped argument does not convince us that in this case, his crime of promoting prostitution merged with his offense of trafficking in individuals. Notably, Appellant does not even acknowledge, let alone challenge, the trial court's conclusion that he "committed more than one single criminal act...." See TCO at 13. Additionally, in regard to the elements portion of the test for merger, Appellant merely sets forth the statutory definitions of the two, at-issue offenses, and then abruptly ends his argument without any discussion of how the elements of promoting prostitution are subsumed within the elements of trafficking in individuals. See Appellant's Brief at 24. In sum, Appellant's inadequate argument in support of his third issue is insufficient to convince us that his merger claim has merit.
In Appellant's fourth issue, he contends that the trial court erred by denying his pretrial motion to suppress, where the search of three cell phones recovered from his vehicle at the time of his arrest was illegal. Appellant argues that the search of the phones was unlawful because the warrant permitting that search had expired at the time the phones were examined.
Our review of the record reveals that Appellant failed to present this claim before the trial court. Instead, Appellant - who was acting pro se when he litigated his pretrial motion to suppress - argued that his three cell phones were illegally seized from his vehicle at the time of his arrest. See N.T. Pretrial Hearing, 12/17/15, at 9-10. The suppression court only addressed this claim, concluding that the seizure of the phones was lawful. See Suppression Court Opinion, 12/23/15, at 17-18. Appellant did not challenge, and the trial court did not assess, the validity of the subsequent search of the cell phones, which was conducted after a warrant was obtained. Moreover, even if Appellant's challenge to the seizure of the phones could be viewed as encompassing his claim that the search of the phones was illegal, Appellant does not cite to where in the record he specifically contended that the search was conducted after the warrant had purportedly expired. Accordingly, because it is apparent that this specific claim was never presented to the trial court, it is "waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a).
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/18/2017
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