Opinion
2983 EDA 2023 J-S28001-24
09-25-2024
COMMONWEALTH OF PENNSYLVANIA v. JEFFREY REESE STREAMER Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered October 18, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-CR-0005572-2022
Benjamin D. Kohler, Esq.
BEFORE: STABILE, J., MURRAY, J., and LANE, J.
MEMORANDUM
STABILE, J.
Appellant, Jeffrey Reese Streamer, appeals from his judgment of sentence of 12-24 years' imprisonment for burglary, simple assault and criminal mischief. We remand for resentencing because the trial court erred by sentencing Appellant for burglary, simple assault and criminal mischief. Pursuant to 18 Pa.C.S.A. § 3502(d), these offenses merge for purposes of sentencing.
The trial court summarized the evidence against Appellant as follows:
Priscilla Sims-Brown hired [Appellant] around March 2022 through a friend's referral to perform weekly outdoor gardening services at her home in Springfield Township, Montgomery County. [Appellant] was not given a key to the residence, did not have permission to enter the residence and, on an occasion when he knocked on the door to give Sims-Brown her mail, was advised by her "not to worry about [the] mail and not to do that again."
During the summer of 2022, while Sims-Brown was traveling and only sporadically returning to the property, her longtime family friend Dail St. Claire resided at the property by herself. Sims-
Brown had introduced St. Claire to [Appellant] before leaving and had informed her that he was the gardener. St. Claire subsequently had little contact with [Appellant] over the summer, with the exception of him asking several times when Sims-Brown would be returning and on one occasion when he had entered the home to deliver mail. St. Claire told [Appellant] he did not need to get the mail and reported the event to Sims-Brown.
On September 1, 2022, [Appellant] arrived at the property with his dog at 9:49 a.m. St. Claire was sitting outside by the pool working remotely on her laptop. [Appellant's dog approached her and [Appellant] retrieved the dog apologetically. He performed his gardening services and left at 10:49 a.m. St. Claire eventually went inside the residence to prepare for a zoom work meeting.
Unbeknownst to St. Claire, [Appellant] returned to the property at 11:43 a.m. With St. Claire inside preparing for her soon-to-begin zoom meeting, [Appellant] entered the residence and approached her at an accelerated pace. She was not immediately concerned because she knew of [Appellant] and was focused on the upcoming zoom meeting. That quickly changed, however, when she saw the intensity of [Appellant's facial expression. [Appellant] grabbed St. Claire by the upper left arm and said "let's do this." She felt pain in her arm when [Appellant] grabbed her. She pushed [Appellant] away and he began to pursue her around a large table in the center of the room while holding a tool of some kind. [Appellant] pushed the contents of the table to the floor while following St. Claire, breaking vases and St. Claire's laptop and phone. He eventually shoved the table toward St. Claire, admittedly flipping it over and breaking it.
With the table no longer a barrier between them, St. Claire ran from the home with [Appellant] in pursuit. She outran [Appellant] in the direction of a nearby park, during which time she suffered an injury to her foot because she had fled while not wearing shoes. She eventually encountered bystanders who assisted her in calling 911. Responding police found St. Claire to be distraught and emotional.
Trial Court Opinion, 1/17/24, at 1-3 (record citations omitted).
The Commonwealth filed an information and subsequently an amended information charging Appellant with one count each of burglary, aggravated assault, simple assault and criminal mischief. The amended information alleged, with regard to burglary:
With the intent to commit a crime therein, [Appellant] did enter a building or occupied structure, or sep[a]rately secured or occupied portion thereof, that is adapted for overnight accommodations in which at the time of the offense any person is present and the person commits, attempts or threatens to commit a bodily injury crime therein.Amended Information, 3/8/23 (emphasis added). With regard to simple assault, the amended information alleged that Appellant "did attempt to cause or intentionally, knowingly or recklessly caused bodily injury to another, to wit: DAIL ST. CLAIRE." Id. In addition, the amended information graded the charge of criminal mischief as a third degree felony by accusing Appellant of causing over $5,000.00 in real or personal property damage.
See 18 Pa.C.S.A. § 3304(b) ("Criminal mischief is a felony of the third degree if the actor intentionally causes pecuniary loss in excess of $5,000").
Following a non-jury trial, the court found Appellant guilty of all charges except aggravated assault. Prior to sentencing, the Commonwealth moved for imposition of a "second strike" mandatory minimum ten-year sentence under 42 Pa.C.S.A. § 9714(a) based on Appellant's prior arson conviction. The court sentenced Appellant to 10-20 years' imprisonment for burglary, the mandatory second strike sentence under Section 9714, and to consecutive terms of 1-2 years' imprisonment for simple assault and criminal mischief. Appellant filed timely post-sentence motions, which the court denied, and a timely notice of appeal. Both Appellant and the court complied with Pa.R.A.P. 1925.
Appellant does not challenge the imposition of a second strike sentence in this appeal.
Appellant raises four issues in this appeal:
1.Whether the Trial Court erred in finding the Appellant guilty of Count 1 (Burglary) and Count 3 (Simple Assault) where the evidence presented at the bench trial was insufficient to warrant a conviction.
2.Whether the Trial Court erred in finding the Appellant guilty of Count 1 (Burglary) and Count 3 (Simple Assault) where verdict was against the weight of the evidence presented at trial.
3.Whether the Sentencing Court erred in imposing an illegal 1 to 2 year consecutive sentence for Simple Assault (M-2) where the charge should have merged with the sentence for Burglary (F-1).
4.Whether the Sentencing Court abused its discretion in denying the Appellant's Motion to Reconsider Sentence and sentencing the Defendant to 1 to 2 years on Count 3 (Simple Assault) consecutive to Count 1 (Burglary) and 1 to 2 years on Count 5 (Criminal Mischief) consecutive to Count 3 for a total of 12 to 24 years was unduly harsh, excessive and unreasonable.
Appellant's Brief at 6-7.
In his first argument, Appellant contends that the evidence was insufficient to sustain his convictions for burglary and simple assault. He does not challenge the sufficiency of the evidence underlying his conviction for criminal mischief.
We apply the following standards to challenges to the sufficiency of the evidence:
We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.
The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact[-]finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.Commonwealth v. Williams, 302 A.3d 117, 120 (Pa. Super. 2023).
An individual commits burglary if,
with the intent to commit a crime therein, the person … enters a building or occupied structure, or separately secured or occupied portion thereof, that is adapted for overnight accommodations in which at the time of the offense any person is present and the person commits, attempts or threatens to commit a bodily injury crime therein.18 Pa.C.S.A. § 3502(a). An individual is guilty of simple assault if he "attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another[.]" 18 Pa.C.S.A. § 2701(a)(1). "Bodily injury" is the "[i]mpairment of physical condition or substantial pain." 18 Pa.C.S.A. § 2301.
The trial court explained that the evidence was sufficient to sustain Appellant's convictions for burglary and simple assault:
[T]he Commonwealth presented evidence demonstrating that [Appellant] did not have permission to enter the residence. The evidence further proved [Appellant] knew the victim was alone in the home when he entered without permission. [Appellant] admitted in his own trial testimony that he returned to the home to have a sexual encounter with the victim. This court did not credit his self-serving claim that he did so under the belief St. Claire had been flirtatious earlier in the day; indeed, his testimony was flatly contradicted by credible evidence to the contrary that he entered the residence with the intent to assault St. Claire. Notably, the evidence demonstrated that [Appellant] pursued St. Claire around a large table while holding a tool of some kind after she had pushed him away from her. [Appellant] admitted to breaking that table during the incident and this court, again, did not credit his self-serving excuse for why he did so. Further, during her efforts to escape from [Appellant], St. Claire suffered an injury to her foot as the result of having to flee while not wearing shoes. The evidence, therefore, proved beyond a reasonable doubt that [Appellant] entered the occupied residence without permission and with the intent to commit a crime therein. The evidence further proved beyond a reasonable doubt that [Appellant]'s actions caused St. Claire to sustain an injury to her foot. He, therefore, is not entitled to relief on his challenge to the sufficiency of the evidence.Trial Court Opinion, 1/17/24, at 7-8. We agree with this cogent analysis and hold that Appellant's challenge to the sufficiency of the evidence lacks merit.
Next, Appellant contends that the verdict was against the weight of the evidence. "A weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing." Commonwealth v. Rivera, 238 A.3d 482, 497 (Pa. Super. 2020). The failure to raise a challenge to the weight of the evidence through these procedures results in waiver of the claim on appeal. Commonwealth v. Barkman, 295 A.3d 721, 736 (Pa. Super. 2023). Here, Appellant did not challenge the weight of the evidence before or at the time of sentencing. His post-sentence motion only sought reconsideration of his sentence but did not raise a weight claim. Thus, Appellant waived his challenge to the weight of the evidence.
Next, Appellant argues that his convictions for burglary and simple assault should have merged for purposes of sentencing, and the trial court erred by sentencing him for each offense. We agree. Indeed, we conclude that Appellant's convictions for burglary, simple assault and criminal mischief merge for purposes of sentencing.
Appellant did not raise any merger argument at sentencing, in his post-sentence motions or in his Pa.R.A.P. 1925 statement of matters complained of on appeal. Nevertheless, "a claim that crimes should have merged for purposes of sentencing challenges the legality of a sentence and, thus, cannot be waived." Commonwealth v. Parham, 969 A.2d 629, 631 (Pa. Super. 2009). Moreover, an appellate court may address, and even raise sua sponte, challenges to the legality of a sentence even if the issue was not preserved in the trial court. Commonwealth v. Armolt, 294 A.3d 364, 376 (Pa. 2023). Our standard of review for challenges to the legality of sentence is de novo and our scope of review is plenary. Commonwealth v. Quinta, 56 A.3d 399, 400 (Pa. Super. 2012).
The burglary statute, 18 Pa.C.S.A. § 3502, provides in relevant part that "[a] person may not be sentenced both for burglary and for the offense which it was his intent to commit after the burglarious entry[,] or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree." 18 Pa.C.S.A. § 3502(d). Simple assault is a misdemeanor, not a felony, 18 Pa.C.S.A. § 2701(b), and criminal mischief is at most a third degree felony. 18 Pa.C.S.A. § 3304(b). Thus, simple assault and criminal mischief merge with burglary for purposes of sentencing when the defendant intended to commit simple assault and criminal mischief after his burglarious entry.
Simple assault is a second degree misdemeanor unless committed (1) in a fight or scuffle, in which case it is a third degree misdemeanor, or (2) against a child under twelve years of age by a person eighteen years of age or older, in which case it is a first degree misdemeanor. 18 Pa.C.S.A. § 2701(b).
Further support for this conclusion comes from several decisions from this Court that construed a prior version of Section 3502(d). In Commonwealth v. Benchoff, 700 A.2d 1289 (Pa. Super. 1997), the defendant (like Appellant herein) was convicted of burglary and simple assault and intended to commit simple assault after his burglarious entry. At the time we decided Benchoff, Section 3502(d) provided that a person cannot be "convicted" both for burglary and the offense he intended to commit after the burglarious entry. Id. at 1294. Benchoff interpreted "convicted" to mean that "[a]lthough it is permissible for the defendant to be adjudicated guilty of both crimes, it is not permissible for the trial court to sentence defendant for both burglary and simple assault, where the simple assault is the offense which he intended to commit once inside the premises." Id.
In Commonwealth v. Benedetto, 462 A.2d 830 (Pa. Super. 1983), the defendant was convicted of burglary, theft by unlawful taking or disposition, and receiving stolen property. On direct appeal, we held that under the prior version of Section 3502(d), the counts of theft and receiving stolen property merged with burglary for sentencing purposes. Id. at 832.
In 2012, the legislature amended Section 3502(d) to replace "convicted" with "sentenced," the text in effect today. The 2012 amendment enforces the same precept that this Court articulated in Benchoff and Benedetto-that the defendant may be found guilty of burglary and other offenses but may not be sentenced for the other offenses when (1) the defendant intended to commit the other offenses after his burglarious entry and (2) the other offenses are not first or second degree felonies.
In this case, the Commonwealth alleged, and the trial court concluded, that Appellant committed burglary with the intent of committing simple assault against St. Claire inside the residence. The burglary count in the amended information accused Appellant of committing burglary in the house where St. Claire was residing with the intent of "commit[ting], attempt[ing] or threaten[ing] to commit a bodily injury crime therein"-language equivalent to the elements of simple assault. See 18 Pa.C.S.A. § 2701(a)(1) (defining simple assault as "attempt[ing] to cause or intentionally, knowingly or recklessly caus[ing] bodily injury to another"). Furthermore, the trial court determined that Appellant "entered the residence with the intent to assault St. Claire." Trial Ct. Op. at 7. Since the court found Appellant guilty of simple assault but acquitted him of aggravated assault, it is clear the court concluded Appellant entered the residence in order to commit simple assault.
Further, the trial court found Appellant guilty of criminal mischief by determining that Appellant destroyed vases, a laptop, a phone and a table after entering the residence and during his attack on St. Claire. Id. at 3. Thus, the evidence shows that Appellant committed burglary with the intent of also committing criminal mischief following his burglarious entry.
The court imposed an illegal sentence under Section 3502(d) by sentencing Appellant separately and consecutively for burglary, simple assault and criminal mischief because Appellant intended to commit the latter two offenses after his burglarious entry. Appellant's simple assault and criminal mischief convictions merge with burglary for purposes of sentencing.
The dissent contends that Appellant's simple assault conviction does not merge with his burglary conviction because "Appellant attempted to cause the victim bodily injury several times. While one simple assault may merge for sentencing purposes, an appellant is not entitled to a volume discount for crimes simply because he managed to accomplish all the acts within a relatively short period of time." Dissent at 6 (citing Commonwealth v. Petterson, 49 A.3d 903, 912 (Pa. Super. 2012)). We respectfully disagree. In Petterson, the defendant was convicted of three counts of aggravated assault because he attacked the victim three times with different weapons and caused distinct injuries to different parts of the victim's body. We held that the assault convictions did not merge for sentencing under 42 Pa.C.S.A. § 9765. Id. at 912 (although the time between the separate acts was "relatively short," they constituted three separate criminal acts and thus did not merge). In the present case, a different merger statute applies (18 Pa.C.S.A. § 3502(d)), and Benedetto makes clear that more than one crime can merge for sentencing with burglary under Section 3502(d). We know of no decision that applies "volume discount" analysis to Section 3502(d); nor does the dissent cite any. Even assuming that volume discount analysis applies to Section 3502(d), it would not preclude merger under the present circumstances. Here, unlike in Petterson, the Commonwealth only charged Appellant with one (1) count of simple assault. The evidence demonstrates that his assault was a single criminal event, because all of his acts took place in mere seconds and in uninterrupted sequence. Thus, there is no danger that Appellant will receive a "volume discount" by merging his simple assault conviction with his burglary conviction for purposes of sentencing.
Since the court imposed separate, consecutive sentences for burglary, simple assault and criminal mischief, our determination that Appellant's sentences for simple assault and criminal mischief are illegal upsets this sentencing scheme. The proper remedy under these circumstances is to vacate Appellant's judgment of sentence on all counts and remand for resentencing. Commonwealth v. Goldhammer, 517 A.2d 1280-1283-84 (Pa. 1986); Commonwealth v. Williams, 871 A.2d 254, 266 (Pa. Super. 2005) (if trial court errs in its sentence on one count in multi-count case, all sentences for all counts will be vacated so court can restructure its entire sentencing scheme).
In view of our decision to remand for resentencing, we need not address Appellant's final argument that the court abused its discretion by imposing an unreasonable sentence.
Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.
Judge Lane joins the memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
MURRAY, J.
While the Majority provides a detailed merger analysis, I respectfully disagree with its conclusion that Appellant's simple assault conviction merged with his burglary conviction for sentencing purposes.
Relevantly, Appellant was convicted of simple assault and burglary. A person commits burglary if,
with the intent to commit a crime therein, the person ... enters a building or occupied structure, or separately secured or occupied portion thereof, that is adapted for overnight accommodations in which at the time of the offense any person is present and the person commits, attempts or threatens to commit a bodily injury crime therein.18 Pa.C.S.A. § 3502(a)(1)(i) (emphasis added).
The Crimes Code defines the offense of simple assault, in relevant part, as follows:
(a) Offense defined. - Except as provided under section 2702 (relating to aggravated assault), a person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another ....18 Pa.C.S.A. § 2701(a)(1) (emphasis added).
The Majority correctly observes that the Amended Information identified the burglary count against Appellant as follows:
With the intent to commit a crime therein, [Appellant] did enter a building or occupied structure, or sep[a]rately secured or occupied a portion thereof, that is adapted for overnight accommodations in which at the time of the offense any person is present and the person commits, attempts or threatens to commit a bodily injury crime therein.
Majority, slip op. at 3 (emphasis modified) (quoting Amended Information, 3/8/23). Crimes Code Section 3502 provides that "[a] person may not be sentenced both for burglary and for the offense which it was his intent to commit after the burglarious entry[,] or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree." 18 Pa.C.S.A. § 3502(d).
The Majority reasons, "[b]ecause simple assault is a misdemeanor instead of a felony, section 3502(d) prohibits the court from sentencing the defendant for both burglary and simple assault when the defendant intended to commit a simple assault after his burglarious entry." Majority, slip op. at 7. Consequently, the Majority concludes that the trial court illegally sentenced Appellant for the burglary conviction "and for the misdemeanor of simple assault that he intended to commit after his burglarious entry." Id., slip op. at 8.
I disagree with the Majority's application of Section 3502(d) under the circumstances of this case. This Court has recognized,
[w]hen 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.
Commonwealth v. Pettersen, 49 A.3d 903, 912 (Pa. Super. 2012) (internal citations and quotation marks omitted).
A review of the record discloses that Appellant entered the victim's residence "and attempt[ed] or threaten[ed] to commit a bodily injury crime therein." 18 Pa.C.S.A. § 3502(d). At trial, the victim testified that during the morning of September 1, 2022, she observed Appellant and his dog on her property. N.T., 3/8/23, at 14. At the time, the victim was working on her computer near her pool, virtually attending meetings. Id. Appellant departed from the property at 10:49 a.m. N.T., 3/9/23, at 32.
The victim subsequently entered her residence to continue her virtual meetings inside. Id. at 34. According to the victim, she changed clothes, putting on a blazer and scarf over her running shirt and shorts. Id. The victim then proceeded to the "garden room" to prepare for her meetings. Id. at 35. She described what next transpired:
Halfway through the preparation for the call[, Appellant] opened the garden door and started to come towards me. I looked at the moment the door opened, I looked up and I saw it was [Appellant]. And then I said Oh, shoot, I've got a call, ... I didn't have any time to deal with whatever he was coming to ask me.
......[A]nd I looked down and I looked up, and he was already coming toward me. . And I stood up because he was coming toward me . at an accelerated pace.
. ....I started to say What do you want?
And he grabbed my arm . He grabbed my left arm on the -on the upper portion with a force that I could feel his -- him penetrating my shoulder and [Appellant] said, "Let's do this." And I immediately knew that I was under attack. I immediately knew that he was about to assault me.Id. at 35 (emphasis added). At the time Appellant grabbed the victim's arm, Appellant had entered the victim's residence "and attempt[ed] or threaten[ed] to commit a bodily injury crime therein." 18 Pa.C.S.A. § 3502(d). Even if Appellant had intended to commit only a simple assault, the crime of burglary was complete upon grabbing the victim.
Nevertheless, the record discloses that Appellant again attempted to cause bodily injury to the victim (simple assault). See 18 Pa.C.S.A. § 2701(a)(1). The victim testified that, after Appellant grabbed her arm she "used both hands and I shoved him with force, all the force I could muster." Id. at 36. The victim described what next transpired:
I saw [Appellant] reach behind his back and put his hand up. I saw an instrument in his hand. I do not know what it was. I would not look at it. I kept my eyes on his eyes.
But the moment I saw his hand up with an instrument of some type, a tool of some type, I said to myself [h]e is
going to hit me with this tool, try and knock me unconscious and that -- I was quickly deducing the situation and [planning to] escape while I was assessing the situation at the same time.
I visualized that he was going to attack me with the tool, that he was going to rape me, and that I was not going to leave that property alive.Id. at 38 (emphasis added).
The victim circled around a table, stating, "You don't want to do this." Id. at 40. The victim testified,
every time I moved, he moved. So we are jockeying around the circ[ular] table. And at one - after doing that for a while with [Appellant's] throwing of the things, then he shoved this wrought iron table toward me ... that I did not anticipate.
... The moment the table came over, I was bolting. I was bolting out. I knew my exit was going to be the first door in the living room because that was the only other door that I kept open in the house.Id. at 41 (emphasis added). The victim explained she
went out of the [garden] room into the living room, opened the door and started going toward the pool. . I bolted . up the stairs, [and] stopped at the top of the stairs for a brief second to see if [Appellant] was following me. That's the first time I turned around. And he was already coming out of the door with full speed toward me.
And then I went into a sprint....
I turned around, saw him by the pool. I turned around at the top of the stairs. I saw him coming after me. I immediately turned around, went into a sprint..
I wasn't going to waste a second in opening the gate. I leaped over the pool fence..Id. at 42 (emphasis added). The victim testified she cut her foot after leaving the house, while fleeing Appellant. Id. at 54.
Contrary to the Majority's analysis, after Appellant completed the crime of burglary, he committed another simple assault upon the victim. Appellant attempted to cause the victim bodily injury several times. While one simple assault may merge for sentencing purposes, an appellant "is not entitled to a volume discount for [] crimes simply because he managed to accomplish all the acts within a relatively short period of time." Pettersen, 49 A.3d at 912. For this reason, I would affirm the trial court's judgment of sentence, which imposed separate sentences for burglary and simple assault.