Com. v. Savage, W. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
WILLIE LEROY SAVAGE :
:
Appellant : No. 2490 EDA 2018
Appeal from the Judgment of Sentence Entered August 15, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004371-2017
BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: Filed: September 17, 2020
Willie Leroy Savage appeals from the judgment of sentence of six to
twenty years of imprisonment imposed after he pled guilty to the attempted
robbery of a pharmacy. We affirm.
On May 18, 2017, at approximately 2:00 p.m., Appellant entered the
Murray Overhill Pharmacy in Media, Pennsylvania, while wearing white latex
gloves and a white t-shirt pulled up over the back of his head. Appellant
approached Samantha Papi, who was working at the pharmacy counter with
another employee, James McHugh. Appellant handed Ms. Papi a note that
said “I have a gun,” before walking around the counter. Affidavit of Probable
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* Retired Senior Judge assigned to the Superior Court.
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Cause, 5/18/17, at 1.1 As Appellant “brush[ed] past” Ms. Papi, he yelled that
he had a gun and wanted all of the “per[c]s.” Id. He also threatened that
“his boys were out front.” Id. Ms. Papi and Mr. McHugh told Appellant that
they did not have any “percs” and activated a silent alarm. Appellant fled
from the pharmacy, flagging down and boarding an eastbound trolley. Ms.
Papi called 911 and the Media Police Department apprehended Appellant from
the trolley. Once removed, Appellant made several unsolicited remarks,
indicating that he was hearing voices, should not have listened to the voices,
and that he did not “get anything” so he should not be arrested. Id. Ms. Papi
positively identified Appellant as the actor and police recovered from her the
note which said: “i have a gun I have my partners waiting wit guns outside.
We dont want to hurt you, give up all the perc, 30’s, 15’s 20’s 10’s, zaney and
promethazine with codeen, no one will get hurt we are watch, no cops.” Id.
Appellant was arrested and charged with attempted robbery, terroristic
threats, robbery, simple assault, and related offenses. On August 18, 2018,
Appellant entered into a negotiated plea agreement, whereby he pled guilty
to a consolidated count of attempted robbery and the Commonwealth
withdrew the other charges and recommended a sentence of six to twenty
years of imprisonment. The trial court accepted the plea and sentenced
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1 At his guilty plea hearing, Appellant stipulated to the facts contained within
the affidavit of probable cause filed by the Media Police Department as the
factual basis for his plea. See N.T. Guilty Plea Hearing, 8/15/18, at 16-17.
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Appellant in conformity with the Commonwealth’s recommendation. Appellant
did not file a post-sentence motion.
Appellant filed a timely notice of appeal and court-ordered Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. The trial court
thereafter authored its Rule 1925(a) opinion. Appellant presents the following
issue for our review: “Did the trial court err, abuse its discretion, and/or make
a mistake of law when it accepted a guilty plea and sentenced [Appellant] for
attempted robbery pursuant to 18 Pa.C.S. § 901 and not 18 Pa.C.S. § 3701?”
Appellant’s brief at 2.
Appellant argues that his sentence is illegal. See Appellant’s brief at 6.
Because the legality of a sentence presents a pure question of law, our scope
of review is plenary, and our standard of review is de novo. Commonwealth
v. Pi Delta Psi, Inc., 211 A.2d 875, 889 (Pa.Super. 2019). “If no statutory
authorization exists for a particular sentence, that sentence is illegal and must
be vacated.” Commonwealth v. Stevenson, 850 A.2d 1268, 1271
(Pa.Super. 2004) (en banc).
Specifically, Appellant argues that “the crime of attempted robbery is
not possible,” because robbery itself does not require the completion of the
predicate offense.2 Appellant’s brief at 6. In support of his position, Appellant
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2 A person is guilty of robbery, if he: 1) inflicts serious bodily injury upon
another; 2) threatens another with or intentionally puts another in fear of
immediate serious bodily injury; 3) commits or threatens immediately to
commit any felony of the first or second degree; 4) inflicts bodily injury upon
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cites Commonwealth v. Austin, 906 A.2d 1213 (Pa.Super. 2006). See
Appellant’s Brief at 6. Without citing to any authority to buttress its reasoning,
the trial court agrees with the defense position and requests that we vacate
Appellant’s sentence. See Trial Court Opinion, 10/24/19, at 2. We disagree.
First, Austin, did not hold that a conviction or sentence under § 901 for
attempted robbery is per se illegal. Instead, the Austin court held that a
felony-murder conviction could not be sustained after the jury acquitted the
defendant of the underlying predicate felony: robbery. Austin, supra at
1221. While there is no mention of the possibility of attempted robbery in the
majority, the concurrence pointed out that a jury instruction that there was
no such crime as attempted robbery was “not correct as a general
presumption.” Id. at 1224 n.7 (citing Commonwealth v. White, 440 A.2d
1198, 1200-01 (Pa.Super. 1982) (approving plea to attempted robbery after
trial court properly informed the defendant of the elements of attempted
robbery)).
Second, Austin has no precedential value, since it was later overturned
by the Pennsylvania Supreme Court. See Commonwealth v. Miller, 35 A.3d
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another or threatens another with or intentionally puts him in fear of
immediate bodily injury; 5) physically takes or removes property from the
person of another by force however slight; 6) takes or removes the money of
a financial institution without the permission of the financial institution by
making a demand of an employee of the financial institution orally or in writing
with the intent to drive the financial institution thereof. See 18 Pa.C.S.
§ 3701. A person is guilty of criminal attempt when, “with intent to commit a
specific crime, he does any act which constitutes a substantial step toward the
commission of that crime.” 18 Pa.C.S. § 901.
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1206 (Pa. 2012). In Miller, our Supreme Court held that the Austin court
erred in concluding that because the Commonwealth failed to prove that the
defendant killed the victim while in perpetration of a robbery that the second-
degree murder conviction could not stand. Id. at 1212. Our Supreme Court
rejected the Austin court’s holding in favor of retaining Pennsylvania’s
longstanding acceptance of inconsistent verdicts. Id. In doing so, the Miller
court explained that in order to convict someone of second-degree murder the
Commonwealth is not required to prove that the accused actually committed
the predicate offense. Id. Importantly, an attempt to commit the predicate
offense is sufficient to sustain a felony murder conviction. Id.
Accordingly, Appellant has failed to persuade us that his sentence for
attempted robbery is illegal.3 Since we find that the trial court did not err in
accepting Appellant’s negotiated guilty plea to attempted robbery and in
issuing the corresponding sentence, we affirm Appellant’s judgment of
sentence.
Judgment of sentence affirmed.
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3 To the extent that Appellant’s challenge to the legality of his sentence is
actually an attempt to attack the sufficiency of the evidence to convict him of
attempted robbery, we note that Appellant waived this avenue of appeal when
he entered into a guilty plea. See Guilty Plea Colloquy ¶ 21; see also
Commonwealth v. Rounsley, 717 A.2d 537, 539 (Pa.Super. 1998) (“It is
well established that any issue relating to sufficiency of the evidence is waived
by entry of a guilty plea[.]”).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/17/20
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