Opinion
J-S51019-19 No. 63 MDA 2019
10-08-2019
COMMONWEALTH OF PENNSYLVANIA Appellee v. MICHAEL J. BALAS, II Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered December 10, 2018
In the Court of Common Pleas of Luzerne County
Criminal Division at No(s): CP-40-CR-0002821-2015 BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J. MEMORANDUM BY GANTMAN, P.J.E.:
Appellant, Michael J. Balas, II, appeals from the judgment of sentence entered in the Luzerne County Court of Common Pleas, following his jury trial convictions for possession with intent to deliver ("PWID"—cocaine), possession of a controlled substance (cocaine), possession of drug paraphernalia, and driving under the influence of a controlled substance (marijuana), and a bench conviction for driving while operating privilege was suspended. We vacate the sentence for possession of cocaine and affirm the judgment of sentence in all other respects.
35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32); 75 Pa.C.S.A. §§ 3802(d)(3), 1543(b)(1), respectively.
In its opinions, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises the following issue for our review:
DID THE TRIAL COURT ERR IN REFUSING TO SUPPRESS ALL EVIDENCE COLLECTED BY INVESTIGATORS TO PROSECUTE [APPELLANT] WHERE THE COMMONWEALTH POSSESSED INSUFFICIENT FACTS TO ESTABLISH PROBABLE CAUSE AND REASON TO CONDUCT A WARRANTLESS SEARCH OF A MOTOR VEHICLE AND ITS CONTENT?(Appellant's Brief at 2).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Michael T. Vough, we conclude Appellant's issue merits no relief. The trial court opinions comprehensively discuss and properly dispose of the question presented. ( See Rule 1925(a) Court Opinion, filed March 1, 2019, at 2-3 unpaginated) (incorporating suppression court opinion into Rule 1925(a) opinion). ( See also Suppression Court Opinion, filed May 3, 2018, at 3-6 unpaginated) (finding: Trooper Golla had probable cause to stop vehicle based on suspended registration; Trooper Golla had probable cause to search vehicle based on detection of marijuana odor from inside vehicle; probable cause to search vehicle without warrant included any container where contraband could be concealed; all evidence seized by police was admissible at trial). The record supports the trial court's decision. Accordingly, we affirm as to Appellant's suppression issue on the basis of the trial court opinions.
Nevertheless, whether crimes merge for sentencing purposes implicates the legality of the sentence, which this Court can raise sua sponte. Commonwealth v. Tanner , 61 A.3d 1043, 1046 (Pa.Super. 2013). Therefore, our standard of review is de novo and our scope of review is plenary. Id. Merger of sentences is governed generally by Section 9765 of the Sentencing Code, which provides:
§ 9765. Merger of sentences42 Pa.C.S.A. § 9765. "[T]he language of the legislature is clear. The only way two crimes merge for sentencing is if all elements of the lesser offense are included within the greater offense." Commonwealth v. Coppedge , 984 A.2d 562, 564 (Pa.Super. 2009) (stating cases decided before effective date of Section 9765 are not instructive in merger analysis; relevant question in merger analysis now is whether person can commit one crime without also committing other crime, regardless of whether facts of particular case comprise both crimes; if elements of crimes differ, i.e., if one offense can be committed without committing other offense, crimes do not merge under legislative mandate of Section 9765) (emphasis in original). When arising out of a single sale or act, the offenses of possession and PWID of the same contraband can merge for sentencing purposes. Commonwealth v. Edwards , 449 A.2d 38, 39 (Pa.Super. 1982).
No crimes shall 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. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.
Instantly, the court sentenced Appellant on count 2 (PWID—cocaine) to 60 to 120 months' imprisonment. The court also sentenced Appellant on count 3 (possession of the same contraband—cocaine) to 3 to 6 months' imprisonment, which the court imposed to run concurrently to count 2. Both convictions, however, arose out of a single act related to the same contraband, as Appellant's possession of the cocaine was with the intent to deliver it. Thus, possession of cocaine in this case was a lesser included offense of PWID (cocaine), and the court should have merged these convictions for sentencing purposes. See id.; 42 Pa.C.S.A. § 9765. Therefore, the court erred when it sentenced Appellant separately on the conviction for possession of cocaine. Accordingly, we vacate that portion of the judgment of sentence of 3 to 6 months' imprisonment on count 3 for possession of cocaine and affirm the judgment of sentence in all other respects.
We do not need to remand this case for resentencing because we vacated a concurrent sentence for possession of cocaine, and our decision does not disturb the overall sentencing scheme. See Commonwealth v. Thur , 906 A.2d 552, 570 (Pa.Super. 2006), appeal denied, 596 Pa. 745, 946 A.2d 687 (2008) (stating vacation of concurrent sentence, which does not disturb sentencing scheme or aggregate length of sentence, does not require remand for resentencing). --------
Judgment of sentence affirmed in part and vacated in part. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/8/2019
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