Com. v. Stover, N. ( 2018 )

J-A04001-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
NATASHA MARIE STOVER
Appellant No. 839 MDA 2017
Appeal from the Judgment of Sentence imposed April 27, 2017
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0004644-2015
BEFORE: STABILE, NICHOLS, AND RANSOM,* JJ.
MEMORANDUM BY STABILE, J.: FILED APRIL 23, 2018
Appellant, Natasha Marie Stover, appeals from the judgment of
sentence imposed on April 27, 2017 in the Court of Common Pleas of York
County following her entry of a guilty plea to criminal conspiracy to commit
homicide and related offenses. Appellant contends the trial court abused its
discretion in imposing its sentence. Appellant also contends the trial court
erred in imposing sentences for two inchoate crimes. Following review, we
affirm.
In its Rule 1925(a) opinion, the trial court provided the following factual
background:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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On and between December 1, 2014 and April 19, 2015,
[Appellant] and her co-defendant (and boyfriend at the time)
Marcus Bordelon (“Bordelon”) agreed and planned to murder
Samantha Young (“Young”). In April 2015, Marcus Bordelon
murdered Young, who was his ex-girlfriend and mother of his
young child. Although Appellant was not present at the killing,
her text messages with Bordelon indicated that she had wanted
to be there. Evidence included test messages exchanged between
Appellant and Bordelon on and between the above dates which
extensively detailed the plot to kill Samantha Young as well as
James Horn (“Horn”).2 Appellant had bought a bag of lime for the
murder, and after Young’s murder, Appellant moved Young’s car.
2
James Horn was the victim’s boyfriend at the time of the murder. The
text messages between Bordelon and Stover first discussed planning
James Horn’s murder. However, this was not accomplished despite their
extensive planning. It should be noted that James Horn was not
murdered and is not a victim in this case.
Trial Court Rule 1925(a) Opinion, 7/14/17, at 1 (additional footnote omitted).
The trial court summarized the procedural background as follows:
Appellant pled guilty to one count conspiracy to commit criminal
homicide, one count obstructing the administration of law and one
count criminal conspiracy to obstruct the administration of law.
For this case, Appellant was sentenced to twelve years and six
months to twenty-five years incarceration with twelve (12)
months probation to run consecutive to the prison sentence.
Id. at 2.1
Appellant filed a timely appeal from her judgment of sentence. Both
Appellant and the trial court complied with Pa.R.A.P. 1925. Appellant now
asks us to consider two issues in this appeal:
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1 On the obstruction and conspiracy to commit obstruction counts, the trial
court imposed identical sentences of 12 months’ probation, noting that the
sentences would run concurrently with each other but consecutive to
Appellant’s sentence for conspiracy to commit homicide. Notes of Testimony
(“N.T.”), Sentencing, 4/27/17, at 63-64.
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1. Whether the lower court abused its discretion at the time of
sentencing?
2. Whether the lower court erred/abused its discretion when it
sentenced [Appellant] to 12 months probation on the criminal
conspiracy to obstruct consecutive to the criminal conspiracy
to commit a homicide charge?
Appellant’s Brief at 4.
Appellant’s first issue presents a challenge to the discretionary aspects
of sentence. “A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right.” Commonwealth v. Grays,
167 A.3d 793, 815 (Pa. Super. 2017) (citation omitted). Before we can reach
the merits of a discretionary aspects challenge,
[w]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
[Pa.R.Crim.P. 720]; (3) whether appellant's brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id. at 815-16 (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006) (citations omitted)). Here, Appellant filed a timely notice of
appeal, satisfying the first prong of the test. However, Appellant has not
satisfied the second prong of the test.
A review of the docket reveals that Appellant did not file any post-
sentence motions. Further, a review of the sentencing transcript reveals that
the issue was not properly preserved at sentencing. As this Court reiterated
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in Commonwealth v. Griffin, 65 A.3d 932 (Pa. Super. 2013), “[i]ssues
challenging the discretionary aspects of a sentence must be raised in a post-
sentence motion or by presenting the claim to the trial court during the
sentencing proceedings. Absent such efforts, an objection to a discretionary
aspect of a sentence is waived.” Id. at 936 (quoting Commonwealth v.
Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) (emphasis in original)
(additional citation omitted). Because Appellant failed to preserve a
discretionary aspects of sentence issue either in a post-sentence motion or at
the time of sentencing, she was waived her discretionary aspects of
sentencing issue on appeal.
In her second issue, Appellant challenges the legality of the sentence
for criminal conspiracy to obstruct that the trial court imposed consecutive to
the sentence for criminal conspiracy to commit homicide. Unlike the
discretionary aspects of sentence issues, a challenge to the legality of
sentence can never be waived. See, e.g., Commonwealth v. Kline, 166
A.3d 337, 340 (Pa. Super. 2017) (citation omitted).
“Issues relating to the legality of a sentence are questions of law. Our
standard of review over such questions is de novo and our scope of review is
plenary.” Id. at 340-41 (quoting Commonwealth v. Wolfe, 106 A.3d 800,
802 (Pa. Super. 2014), aff’d, 140 A.3d 651 (Pa. 2016) (parentheses, ellipses
and additional citations omitted)).
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Appellant’s legality of sentence issue is based on 18 Pa.C.S.A. § 906,
which provides that “[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 culminate in the commission of the same
crime.” Appellant argues that “[t]he charge for criminal conspiracy
Obstruction was part of the Criminal Conspiracy to commit homicide.”
Appellant’s Brief at 50. We disagree.
In Commonwealth v. Welch, 912 A.2d 857 (Pa. Super. 2006), this
Court addressed a similar challenge to imposition of sentences for two
inchoate crimes: attempted murder and conspiracy to commit robbery.
Rejecting Welch’s argument, we explained:
“Section 906 was designed to prevent multiple inchoate charges
that carry with them the same criminal intent.” Commonwealth
v. Davis, 704 A.2d 650, 653 (Pa. Super. 1997). Under section
906, “inchoate 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,
508 A.2d 1198 (1986) (emphasis added). See, e.g.,
Commonwealth v. Brown, 336 Pa. Super. 628, 486 A.2d 441,
445 (finding that appellant’s sentences for attempted burglary and
conspiracy to commit burglary violate section 906, because they
arise from conduct directed to the commission of the same crime);
Commonwealth v. Ford, 315 Pa. Super. 281, 461 A.2d 1281,
1289 (1983) (stating that appellant’s sentences for attempted
murder, conspiracy to commit murder and possession of an
instrument of crime are barred under section 906, because the
facts of the case demonstrated “that the offenses were
perpetrated with one objective in mind-the (attempted) killing” of
the victim).
Id. at 859. Further,
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the attempt to commit murder and conspiracy to commit robbery
are independent crimes, each with their own separate factual
basis and criminal purpose; that is, the objective of the attempted
murder was to kill Mondragon while the objective of the conspiracy
was to steal an ATV. Therefore, the trial court did not violate
section 906 when it sentenced Welsh for both the conspiracy to
commit robbery and attempted murder. See Commonwealth v.
Waters, 255 Pa. Super. 107, 386 A.2d 159, 159-60 (1978)
(finding that sentences for conspiracy to commit burglary/theft
and attempted murder do not violate section 906 where the
appellant burglarized a residence and attempted to murder an
occupant within that residence).
Id.Similarly, Appellant’s convictions for criminal conspiracy to commit
murder and criminal conspiracy to obstruct represent independent crimes,
each with its own factual basis and criminal purpose. At its most basic level,
Appellant’s conviction for conspiracy to commit murder involved the planning
of Samantha Young’s murder. Her conviction for conspiracy to obstruct
involved actions taken after the murder was committed in an attempt to
conceal and/or alter evidence relating to the murder.
The distinction between the two crimes is apparent from a reading of
relevant portions of the information filed in this case on August 19, 2015. The
three counts to which Appellant entered a guilty plea and for which she was
sentenced were Count 2, 5 and 6, which read as follows:
COUNT 2: CRIMINAL CONSPIRACY TO MURDER IN THE FIRST
DEGREE[,] 18 Pa.C.S.A. 903(a)(1) 18 Pa.C.S.A. 2502(a) -- Felony
1st DEGREE
The Actor, with the intent of promoting or facilitating the
commission of a crime, conspired and agreed with another person
or persons, specifically Marcus James Bordelon that they or one
or more of them would engage in conduct which constituted a
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crime or an attempt to commit the crime of MURDER IN THE FIRST
DEGREE, and said defendant or other persons did commit an act
in furtherance thereof.
COUNT 5: OBSTRUCTING ADMINISTRATION OF LAW OR OTHER
LAW ENFORCEMENT[,] 18 Pa.C.S.A. 5101 -- Misdemeanor 2nd
DEGREE
The Actor intentionally obstructed, impaired or perverted the
administration of law or other governmental function by force,
violence, physical interference or obstacle, breach of official duty,
or any other unlawful act, namely, by acting to conceal and/or
alter evidence in the death of Samantha Marie Young.
COUNT 6: CRIMINAL CONSPIRACY to OBSTRUCTING
ADMINISTRATION OF LAW OR OTHER LAW ENFORCEMENT[,] 18
Pa.C.S.A. 903(a)(1) 18 Pa.C.S.A. 5101 -- Misdemeanor 2nd
DEGREE
The Actor, with the intent of promoting or facilitating the
commission of a crime, conspired and agreed with another person
or persons, specifically Marcus James Bordelon, that they or one
or more of them would engage in conduct which constituted a
crime or an attempt to commit the crime of OBSTRUCTING
ADMINISTRATION OF LAW OR OTHER LAW ENFORCEMENT, and
said defendant or other persons did commit an act in furtherance
thereof.
Information, 8/19/15, at 1-2.
Appellant’s convictions of conspiracy to commit homicide and conspiracy
to obstruct related to separate crimes and Section 906 does not preclude the
imposition of sentences for independent crimes. Welch, supra. Therefore,
the trial court did not violate Section 906, and consequently did not commit
error of law, when it sentenced Appellant for both conspiracy to obstruct and
attempted homicide.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/23/18
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