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Commonwealth v. Morrison

SUPERIOR COURT OF PENNSYLVANIA
Apr 9, 2018
No. J-S83039-17 (Pa. Super. Ct. Apr. 9, 2018)

Opinion

J-S83039-17 No. 735 EDA 2016

04-09-2018

COMMONWEALTH OF PENNSYLVANIA Appellee v. DAHMIR MORRISON Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence October 15, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014597-2013 BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J. MEMORANDUM BY GANTMAN, P.J.:

Appellant, Dahmir Morrison, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions of three counts of attempted murder, one count of conspiracy to commit murder, three counts of aggravated assault, and one count each of firearms not to be carried without a license, carrying a firearm in public in Philadelphia, and possession of an instrument of crime ("PIC"). We affirm the convictions but vacate the judgment of sentence and remand for resentencing.

In its opinion, the trial court fully and accurately sets forth the relevant facts and procedural history of this case. Therefore, we have no need to restate them. We add the court sentenced Appellant on October 15, 2015, to an aggregate term of eleven (11) to twenty-two (22) years' incarceration, which included concurrent terms of nine (9) to eighteen (18) years' incarceration each for the attempted murder and conspiracy to commit murder convictions.

Appellant raises two issues for our review:

DID THE TRIAL COURT ERR IN SENTENCING APPELLANT ON ATTEMPTED MURDER AND CONSPIRACY TO [COMMIT] MURDER IN VIOLATION OF 18 PA.C.S.A. SECTION 906[?]

WAS THE EVIDENCE INSUFFICENT TO SUSTAIN A CONVICTION FOR ATTEMPTED MURDER, AGGRAVATED ASSAULT, CRIMINAL CONSPIRACY [TO COMMIT MURDER], VUFA, AND PIC?
(Appellant's Brief at 3).

In his first issue, Appellant argues his convictions for attempted murder and conspiracy to commit murder stemmed from conduct designed to culminate in the commission of the same crime. Appellant maintains the court improperly imposed a concurrent sentence of nine to eighteen years' imprisonment on both the attempt and the conspiracy convictions. Appellant concludes the sentence is illegal, and this Court must vacate the judgment of sentence. We agree.

"A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence. Therefore, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Nero , 58 A.3d 802, 806 (Pa.Super. 2012), appeal denied, 621 Pa. 655, 72 A.3d 602 (2013). "In evaluating a trial court's application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law." Commonwealth v. Poland , 26 A.3d 518, 523 (Pa.Super. 2011), appeal denied, 614 Pa. 702, 37 A.3d 1195 (2012).

Section 906 of the Crimes Code provides:

§ 906. Multiple convictions of inchoate crimes barred

A person may not be convicted of more than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy for conduct designed to commit or to culminate in the commission of the same crime.
18 Pa.C.S.A. § 906. In this context, "[w]hen the law speaks of a 'conviction,' it means a judgment, and not merely a verdict, which in common parlance is called a conviction." Commonwealth v. Maguire , 452 A.2d 1047, 1049 (Pa.Super. 1982) (emphasis in original). "When a trial court is faced with a jury verdict of guilty of more than one inchoate crime, it is required by Section 906 to render a judgment of sentence for no more than one of those crimes." Id. at 1050. "[I]nchoate crimes merge only when directed to the commission of the same crime, not merely because they arise out of the same incident." Commonwealth v. Graves , 510 Pa. 423, 424, 508 A.2d 1198, 1198 (1986). Section 906 "is designed to eliminate multiple...judgments of sentence for conduct which constitutes preparation for a single criminal objective." Commonwealth v. Grekis , 601 A.2d 1284, 1295 (Pa.Super. 1992). But see Commonwealth v. Jacobs , 614 Pa. 664, 39 A.3d 977 (2012) (holding appellant's sentences for attempt to escape and conspiracy to commit escape from prison did not merge under Section 906, where conspiracy conviction was based on joint plan to escape, while attempt to escape conviction involved several distinct escape attempts).

In this context, "[W]here the trial court has erroneously...sentenced an appellant for two inchoate crimes, the remedy has been either to amend the sentence...or to remand for resentencing for either one or the other." Maguire , supra at 1050. See also In Interest of Mark C., 489 A.2d 887 (Pa.Super. 1985) (holding when trial court errs by sentencing appellant on both inchoate crimes, appellate court has option either to remand for resentencing or to amend sentence directly); Commonwealth v. Watts , 465 A.2d 1267 (Pa.Super. 1983) (vacating appellant's judgment of sentence for one inchoate crime and affirming judgment of sentence for other crime, where trial court imposed concurrent sentences on each conviction).

Instantly, the offenses of attempted murder and conspiracy to commit murder were directed toward and culminated in the same criminal act, corralling and shooting at Victims. See 18 Pa.C.S.A. § 906. The court sentenced Appellant to concurrent sentences on each of his inchoate offenses, attempt and conspiracy. Appellant's judgment of sentence is illegal. See Maguire , supra ; 18 Pa.C.S.A. § 906. Accordingly, we vacate the judgment of sentence in its entirety and remand for resentencing. See Commonwealth v. Bartrug , 732 A.2d 1287 (Pa.Super. 1999), appeal denied, 561 Pa. 651, 747 A.2d 896 (1999) (holding sentencing error on one count in multi-count case generally requires all sentences for all counts to be vacated so court can restructure entire sentencing scheme). See also Commonwealth v. Goldhammer , 512 Pa. 587, 593, 517 A.2d 1280, 1283 (1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987)) (stating generally if appellate court alters overall sentencing scheme, then remand for re-sentencing is proper).

The Commonwealth agrees separate sentences on the inchoate offenses is impermissible but insists we should simply vacate a sentence on one of the inchoate offenses, because they were imposed concurrently, and affirm the judgment of sentence in all other respects. The present case, however, involves multiple counts; and the court's sentencing error on one count generally requires all sentences for all counts to be vacated so the court can restructure the entire sentencing scheme. See Bartrug , supra. Thus, we decline to follow the Commonwealth's recommendation.

With respect to Appellant's second issue,

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Jones , 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting Commonwealth v. Bullick , 830 A.2d 998, 1000 (Pa.Super. 2003)).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Diana L. Anhalt, we conclude Appellant's second issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed March 17, 2017, at 5-16) (finding: evidence established that minutes before shooting, one Victim bumped into Appellant and three co-conspirators in restaurant; Appellant and his cohorts then rode bicycles past all three Victims twice; two individuals on bicycles then restrained all three Victims' movement while two others shot at all three Victims; Appellant and cohorts aimed at and fired at least 13 rounds in direction of all three Victims; Appellant's use of deadly weapon on Victims showed intent to kill sufficient to support Appellant's convictions for attempted murder; evidence was sufficient to convict Appellant of aggravated assault, notwithstanding Appellant's attempted murder convictions, where one Victim sustained serious bodily injury from gunshot wounds; firing multiple rounds in direction of Victim constituted reckless behavior manifesting extreme indifference to value of human life; further, Appellant and his cohorts fired multiple rounds in direction of all three Victims, demonstrating intent to cause serious bodily injury to all Victims; regarding Appellant's conspiracy to commit murder conviction, Appellant and co-conspirators on bicycles twice circled Victims before shooting; Appellant and cohorts approached and fled scene together; authorities recovered two distinct shell casings from scene, indicating shooters had used two separate guns; one Victim saw Appellant and co-conspirators together at restaurant minutes before shooting; shooting at Victims constituted overt act and established, at least, disregard of great risk of inflicting death or serious bodily harm upon all Victims; therefore, evidence was sufficient to convict Appellant of conspiracy; concerning Appellants' VUFA convictions, witness testimony established Appellant possessed firearm in public while in Philadelphia; Victims saw Appellant carrying gun at restaurant prior to shooting; also, Commonwealth provided certificate of non-licensure, indicating Appellant lacked license to carry firearm on date of shooting; concerning Appellant's PIC conviction, testimony established Appellant discharged firearm at Victims; therefore, evidence was sufficient to convict Appellant of PIC). Accordingly, we affirm Appellant's convictions, based on the trial court opinion, but we vacate the judgment of sentence and remand for resentencing.

Judgment of sentence vacated; case remanded for resentencing. Jurisdiction is relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/9/18

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Summaries of

Commonwealth v. Morrison

SUPERIOR COURT OF PENNSYLVANIA
Apr 9, 2018
No. J-S83039-17 (Pa. Super. Ct. Apr. 9, 2018)
Case details for

Commonwealth v. Morrison

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA Appellee v. DAHMIR MORRISON Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Apr 9, 2018

Citations

No. J-S83039-17 (Pa. Super. Ct. Apr. 9, 2018)