Com. v. Pelzer, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAINE SHEPPARD PELZER :
:
Appellant : No. 1670 MDA 2021
Appeal from the Judgment of Sentence Entered November 15, 2021
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0001989-2001
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 17, 2023
Appellant, Caine Sheppard Pelzer, appeals pro se from the judgment of
sentence of 17 to 34 years of incarceration entered following our remand for
resentencing in Commonwealth v. Pelzer, No. 1279 MDA 2019, unpublished
memorandum (Pa. Super. filed May 26, 2021). We affirm.
We previously summarized the basic factual history as follows:
Appellant was arrested in connection with an incident at the home
of Mr. Joseph Banaszek on February 17, 2001. On that night[,]
Appellant and two other males, all of whom were wearing masks,
entered Mr. Banaszek’s home without permission. The intruders
threatened him with their guns and also used physical force before
tying him up with tape, as they stole various items from the
apartment. During the robbery, three friends of Mr. Banaszek also
arrived and were similarly subdued. The masked men left with
several items belonging to Mr. Banaszek including an ATM banking
card, as well as the wallets and credit cards of his three friends.
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* Former Justice specially assigned to the Superior Court.
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The victims were able to identify Appellant because all of them
were involved with the same semi-professional football team,
either as players or fans, and knew Appellant as the quarterback.
When Appellant was arrested[,] he had several bank cards in his
possession which belonged to Mr. Banaszek and his friends.
Id. at 1-2 (footnote omitted).
Appellant was charged with thirty-one separate counts. As relevant to
the challenges herein, Appellant was charged with four counts of recklessly
endangering another person, one for each of the victims. 18 Pa.C.S. § 2705
(“REAP”). The Commonwealth also charged Appellant with violating the
following subsections of the robbery statute as to each victim, for a total of
sixteen counts of robbery.
(a) Offense defined.--
(1) A person is guilty of robbery if, in the course of committing a
theft, he:
....
(ii) threatens another with or intentionally puts him in fear
of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony
of the first or second degree;
(iv) inflicts bodily injury upon another or threatens another
with or intentionally puts him in fear of immediate bodily
injury;
(v) physically takes or removes property from the person of
another by force however slight; ….
18 Pa.C.S. § 3701(a)(1)(ii)-(v).
The parties proceeded to a jury trial, where Appellant presented an alibi
defense. Appellant’s motion for judgment of acquittal as to two counts was
granted. At count fourteen, the trial court granted the motion with respect to
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violating 18 Pa.C.S. § 6105(a)(1), because the Commonwealth failed to
provide evidence that Appellant was previously convicted of a crime that
barred his possession of a firearm. See 18 Pa.C.S. § 6105 (pertaining to
“[p]ersons not to possess, use, manufacture, control, sell or transfer
firearms”). At count fifteen, which charged Appellant with carrying a firearm
without a license in violation of 18 Pa.C.S. § 6106, the trial court stated that
there was no evidence that Appellant ever concealed the firearm at any point.
Appellant was ultimately convicted of twenty-two counts and sentenced
on April 15, 2002, to an aggregate term of 22 to 44 years’ imprisonment,
which included the imposition of a mandatory minimum sentence pursuant to
42 Pa.C.S. § 9712(a) for visibly possessing a firearm during the robbery. That
statute was later held unconstitutional in Commonwealth v. Valentine, 101
A.3d 801, 812 (Pa. Super. 2014) (citing Alleyne v. United States, 570 U.S.
99 (2013) (holding that any fact that increases the mandatory minimum
sentence is an element that must be submitted to the jury and found beyond
a reasonable doubt)).
Appellant filed a notice of appeal, seeking to raise one claim: that his
trial counsel ineffectively failed to present additional alibi witnesses, as well
as obtaining phone records to support the offered alibi defense. During the
pendency of that appeal, our Supreme Court decided Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002), which held that ineffective assistance of
counsel claims should generally not be addressed on direct appeal. We were
constrained to affirm the judgment of sentence without prejudice to
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Appellant’s ability to pursue the claim in collateral proceedings. Appellant did
not petition for further review with our Supreme Court, and his judgment of
sentence became final on June 6, 2003.
The matter returned to our Court several times over the next 16 years.
Appellant did not seek collateral relief until April 1, 2008, arguing that his
petition met a timeliness exception based on attorney abandonment. The
PCRA court held an evidentiary hearing and deemed the petition untimely. We
remanded for the court to reevaluate the petition due to new evidence.
Commonwealth v. Pelzer, No. 940 MDA 2009, unpublished memorandum
(Pa. Super. filed May 18, 2011). The PCRA court denied relief on remand and
reinstated its original order, and we affirmed by memorandum decision issued
July 14, 2014. Commonwealth v. Pelzer, No. 1445 MDA 2013, unpublished
memorandum (Pa. Super. filed July 14, 2014). Appellant filed a petition for a
writ of habeas corpus in the United States District Court for the Middle District
of Pennsylvania on January 30, 2015. See Pelzer v. Mahally, 388 F. Supp.3d
366, 371 (M.D. Pa. 2019). The district court issued a conditional writ of
habeas corpus, directing the Commonwealth to release Pelzer unless it
reinstated his appellate and post-conviction rights.
Following reinstatement of his rights, Appellant pursued his direct
appeal. On May 26, 2021, we affirmed Appellant’s convictions but vacated
the judgment of sentence since Appellant’s mandatory minimum sentence was
unconstitutional, as the reinstatement of appellate rights entitled Appellant to
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the benefit of the Valentine decision. We thus remanded for resentencing.
Pelzer, No. 1279 MDA 2019, supra.
On remand, Appellant waived his right to an attorney and chose to
represent himself. He was thereafter resentenced to an aggregate term of 17
to 34 years’ imprisonment. As relevant to Appellant’s claims, the trial court
imposed sentences on the four violations of Section 3701(a)(1)(ii),
determining that the sentences for all other robbery convictions merged.
Additionally, the trial judge imposed a sentence on some of the REAP and
unlawful restraint counts, rejecting Appellant’s claims that the crimes merged
with Section 3701(a)(1)(ii). Appellant now appeals from the judgment of
sentence entered on remand, raising the following issues for our review:
1. Whether the [t]rial [c]ourt erred when it imposed consecutive
sentences upon [Appellant] for convictions of multiple counts of
reckless[ly] endangering another person and unlawful restraint[,]
which were included in the robbery offenses as charged and
subsumed within the other, constituting an illegal sentence?
2. Whether [Appellant] could be convicted under all grades of
robbery, and if so, whether all other felonies of the first and
second degree would be subsumed under the robbery charge
3701(iii) [sic] by the plain language of the elements which calls
for merging any and all felonies of the first degree at sentencing?
3. Whether the [t]rial [c]ourt erred and abused its discretion in
violation of the double jeopardy clause to the Pa. and U.S.
Constitutions as well as 204 Pa Code subsection 303.10[,] when
it enhanced [Appellant]’s sentence by allowing the Commonwealth
to change its position to utilize the Deadly Weapon Enhancement
“USED” sentencing guidelines as opposed to the Deadly Weapon
Enhancement “POSSESSED” [sentencing guidelines,] which was
previously rejected when [Appellant] was acquitted of various
firearms charges [and] ultimately increased every sentence
[Appellant] received?
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Appellant’s Brief at 4.
Appellant’s first issue argues that the sentences for REAP and unlawful
restraint should have merged with the robbery convictions. We disagree.
Our General Assembly has directed that crimes do not 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.” 42 Pa.C.S. § 9765 (emphasis added). That
statute was enacted in 2002, and as our Supreme Court explained in
Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009), the “pre-Section
9765 jurisprudence characterized the merger doctrine as, first and foremost,
a rule of statutory construction.” Id. at 835. Under the former approach,
courts would ask “whether the legislature intended for the punishment of one
offense to encompass that for another offense arising from the same criminal
act or transaction.” Id. (quoting Commonwealth v. Anderson, 650 A.2d
20, 21 (Pa. 1994)). Courts would find that sentences merge where “the same
facts show that practically speaking there was only one offense against the
Commonwealth ... despite the number of chargeable offenses arising out of
the transaction.” Commonwealth v. Williams, 496 A.2d 31, 40 (Pa. Super.
1985) (citations omitted). Section 9765, however, “makes the legislature’s
intent with respect to merger manifest. That intent focuses solely on the
elements of the offenses for which a criminal defendant has been convicted.”
Baldwin, 985 A.2d at 835.
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Appellant largely relies upon Commonwealth v. Eberts, 422 A.2d
1154 (Pa. Super. 1980), a case that predates Section 9765. There, this Court
determined that REAP and robbery charged under Section 3701(a)(1)(ii), the
same subsection at which Appellant was sentenced herein, merged for the
following reasons:
In the course of committing a theft, herein stealing money from
the dairy bar, the appellant threatened Mrs. Bibby with immediate
serious bodily harm, specifically by use of a firearm. The above
facts establish the necessary elements for the offense of robbery
as stated infra. In order to prove that appellant engaged in
conduct which recklessly placed another in danger of death or
serious bodily injury, these exact same facts must be considered.
No additional facts exist, or are necessary, to prove that appellant
recklessly endangered another’s life.
Id. at 1156.
Similarly, Appellant contends that the acts which support his robbery
convictions are the same facts used to support his REAP convictions. Eberts’
focus on whether the “same facts” supported both convictions is inconsistent
with the elements test demanded by Section 9765. The crimes of REAP, and
robbery–threatening or causing serious bodily injury, each contain an element
that the other does not, as explained by Commonwealth v. Martinez, 153
A.3d 1025 (Pa. Super. 2016):
In reviewing whether Appellant’s conviction for REAP merges with
his conviction for robbery, however, a comparison of the
respective statutes leads to the conclusion that each offense
requires proof of an element that the other does not, and,
therefore, cannot merge for sentencing purposes. Indeed, among
the elements of REAP is the requirement that the defendant
possessed the “actual present ability to inflict harm.” This
evidentiary burden exceeds that required for robbery under
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Section 3701(a)(1)(ii), which only requires proof that the
defendant threatened another with, or intentionally placed a
person in fear of, immediate serious bodily injury whether or not
the ability to cause such injury was actual. Moreover, REAP does
not concern itself with the victim’s state of mind, while robbery
under Section 3701(a)(1)(ii) requires proof that the victim was
placed in fear of serious bodily injury. [The a]ppellant’s merger
argument with respect to REAP and robbery is, therefore,
unavailing.
Id. at 1033 (citation omitted).
The Martinez analysis follows the Section 9765 statute, and as a result,
Appellant’s convictions for REAP and robbery do not merge.
We similarly reject Appellant’s contention that unlawful restraint merges
with robbery, as it appears Appellant relies on the former law. Under Section
9765, the crimes do not merge. Appellant was convicted of violating the
following subsection of unlawful restraint:
(a) Offense defined.--Except as provided under subsection (b)
or (c), a person commits a misdemeanor of the first degree if he
knowingly:
(1) restrains another unlawfully in circumstances exposing
him to risk of serious bodily injury[.]
18 Pa.C.S. § 2902.
The Section 3701(a)(1)(ii) subsection of robbery references serious
bodily injury but does not require any proof that the victim was restrained.
Section 2902(a)(1) does not require any proof that the actor threatened
serious bodily injury or inflicted such injury, only that the restraint risked
exposure to serious bodily injury. Thus, each crime requires proof of an
element that the other does not, and the crimes do not merge for sentencing
purposes.
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Appellant’s second issue is somewhat difficult to parse.1 He observes
that “all of the grades of the robbery statutes are inconsistent with one
another,” because they “all are comprised of different elements.” Appellant’s
Brief at 15. Appellant discusses the different elements and asserts that “a
guilty verdict on a lesser included offense is an acquittal of the higher offense.”
Id. at 16. The basis for this claim is 18 Pa.C.S. § 109(1), which states:
When a prosecution is for a violation of the same provision of the
statutes and is based upon the same facts as a former
prosecution, it is barred by such former prosecution under the
following circumstances:
(1) The former prosecution resulted in an acquittal. There
is an acquittal if the prosecution resulted in a finding of not
guilty by the trier of fact or in a determination that there
was insufficient evidence to warrant a conviction. A finding
of guilty of a lesser included offense is an acquittal of the
greater inclusive offense, although the conviction is
subsequently set aside.
18 Pa.C.S. § 109.
Even if Appellant were correct that the least serious robbery offense is
a lesser included offense of all the other subsections, Section 109 does not
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1 The Commonwealth claims that Appellant’s claim is waived. While the
precise nature of Appellant’s claim is difficult to discern, we will review the
challenges to his sentence as a challenge to the legality of his sentence
pursuant to Commonwealth v. Hill, 238 A.3d 399, 408 (Pa. 2020) (holding,
in the double jeopardy context, that challenge to validity of conviction was
waived but “challenge to his second sentence for DUI implicates the legality
of his sentence, rendering that part of his claim non-waivable”). We agree
with the Commonwealth that any challenge to the convictions themselves is
waived. Id. Moreover, as the matter was remanded to the trial court for
resentencing, only issues germane to sentencing may be raised at this
juncture.
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support the notion that a sentence must be imposed only on the least-serious
offense. This case does not involve a former prosecution followed by a later
prosecution, and thus the statute has no applicability.
Appellant’s final claim concerns the application of the Deadly Weapon
Enhancement (used) matrix. Appellant argues that the determination that he
used a deadly weapon constituted judicial fact-finding that increased his
minimum sentence and therefore violates the holding announced in Alleyne,
supra, and Apprendi v. New Jersey, 530 U.S. 466 (2000) (holding that any
fact that increases the maximum sentence must be submitted to the fact-
finder and proven beyond a reasonable doubt). Those claims implicate the
legality of the sentence. See Commonwealth v. Newman, 99 A.3d 86, 90
(2014) (en banc). Appellant also claims that, because the trial judge acquitted
him of the firearms offense, there was no basis to conclude that he possessed
a firearm.
Appellant notes that the Commonwealth originally submitted guidelines
showing the Deadly Weapon Enhancement (possessed) matrix, which
recommends a lower sentence than the “used” matrix. See 204 Pa.Code §
303.17(a). For example, robbery–threatening serious bodily injury has an
offense gravity score of 10. 204 Pa.Code § 303.15. When paired with
Appellant’s prior record score of three, the recommended standard range
sentence without any enhancement is a minimum of 42 to 54 months’
imprisonment. 204 Pa.Code § 303.16(a). With the “possessed”
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enhancement, the recommendation increases to 51 to 63 months; for “used,”
it increases to 60 to 72 months. 204 Pa.Code § 303.17(b).
Both of Appellant’s claims fail. Beginning with the acquittal, the trial
judge granted that motion on the basis that the Commonwealth failed to
present evidence to satisfy the elements of the respective crimes. That does
not serve as a finding that Appellant did not possess the firearm, and Appellant
does not explain how the judge could usurp the jury’s fact-finding role in that
regard. The court did not find that the Commonwealth failed to offer any
evidence that Appellant possessed a firearm, and several witnesses testified
that Appellant wielded a firearm during the criminal episode. In any event,
even if the jury had acquitted Appellant of the specific firearm crimes, the
outcome would not change. Generally speaking, “jury acquittals should not
be interpreted as specific factual findings arising from the evidence; rather,
an acquittal may merely show lenity on the jury’s behalf, or that the verdict
may have been the result of compromise, or of a mistake on the part of
the jury.” Commonwealth v. Baker-Myers, 255 A.3d 223, 231 (Pa. 2021).
It is also clear that the deadly weapon enhancement does not constitute
impermissible judicial fact-finding, because the judge’s finding does not
increase the sentence nor does it impose a mandatory minimum. In
Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa. Super. 2014) (en banc),
this Court analyzed whether an automobile constitutes a deadly weapon for
purposes of the deadly weapon enhancement at issue here. In a footnote, we
observed:
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Alleyne and Apprendi dealt with factors that either increased the
mandatory minimum sentence or increased the prescribed
sentencing range beyond the statutory maximum, respectively.
Our case does not involve either situation; instead, we are dealing
with a sentencing enhancement. If the enhancement applies, the
sentencing court is required to raise the standard guideline range;
however, the court retains the discretion to sentence outside the
guideline range. Therefore, neither of the situations addressed in
Alleyne and Apprendi are implicated.
Id. at 1270 n.10.
Accordingly, the trial court did not illegally determine that Appellant
used a firearm during the commission of these crimes, and the application of
the enhancement was proper.2
Judgment of sentence affirmed.
PJE Stevens joins this memorandum.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/17/2023
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2 The fact that the Commonwealth submitted guidelines for Appellant’s initial
sentencing that used the deadly weapon (possessed) enhancement is
irrelevant. Ultimately, the trial court must determine which guideline applies.
We add that the Commonwealth’s brief offers a plausible explanation for its
error. “[T]here was little to no discussion whether that matrix was the correct
one to use since [Appellant] was sentenced pursuant to the then-applicable
mandatory minimum sentence.” Commonwealth’s Brief at 14.
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