Commonwealth v. Nero

• Court: Superior Court of Pennsylvania
• Writing for the Court: OPINION BY MUNDY
• Citation: 2012 PA Super 271,58 A.3d 802
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Rory David NERO, Jr., Appellant.
• Decision Date: 11 December 2012

58 A.3d 802
2012 PA Super 271

COMMONWEALTH of Pennsylvania, Appellee
v.
Rory David NERO, Jr., Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 22, 2012.
Filed Dec. 11, 2012.

[58 A.3d 804]

William J. Hathaway, Erie, for appellant.

Michael E. Burns, Assistant District Attorney, Erie, for Commonwealth, appellee.

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., and MUNDY, J.

OPINION BY MUNDY, J.:

Appellant, Rory David Nero, Jr., appeals from the March 28, 2012 order denying relief on his two remanded issues raised in his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541–9546. After careful review, we affirm.

We previously summarized the factual and procedural background of this case as follows.

Appellant was arrested and charged with various offenses based on his participation in a “chop shop” operation. Specifically, Appellant would purchase “donor” vehicles and deliver them to a business owned by Thomas Black, Appellant's co-defendant, called BK Performance. Appellant would then obtain stolen vehicles and likewise deliver them to Black's business. Parts from the donor vehicles ( i.e. ignition switches and windows) would then be removed and swapped with broken parts on the stolen vehicles that were damaged during the illegal acquisition of those cars. Additionally, Appellant participated in removing VIN numbers and federal identification tags from the legally acquired donor vehicles and placing them on the stolen cars. Appellant then sold the stolen vehicles at automobile auctions.

Based on this conduct, Appellant was charged and convicted, following a jury trial, of one count of owning, operating or conducting a chop shop (Count 1); four counts of owning, operating or conducting a chop shop—illegally obtained/altered property (Counts 3, 7, 8, 9); one count of criminal conspiracy to own a chop shop (Count 10); four counts of receiving stolen property (Counts 12, 13, 16, 17), and four counts of theft by deception (Counts 20, 21, 22, 23). On September 22, 2008, [Appellant] was sentenced to an aggregate term of 64 to 124 months' incarceration. [Appellant] filed a direct appeal challenging the weight and sufficiency of the evidence, as well as a portion of the court's jury instructions. On July 7, 2009, this Court affirmed Appellant's judgment of sentence. Commonwealth v. Nero, 981 A.2d 929 (Pa.Super.2009) (unpublished memorandum). Appellant did not petition for permission to appeal to our Supreme Court.

On June 1, 2010, Appellant filed a timely petition for post-conviction relief. Counsel was appointed and an amended petition was filed on Appellant's behalf. However, on September 7, 2010, the PCRA court denied Appellant's petition without a hearing.

Commonwealth v. Nero, 43 A.3d 523 (Pa.Super.2012) (unpublished memorandum at 1–3) (footnote omitted) ( Nero III ).

Appellant filed a timely appeal from the September 7, 2010 order. On appeal, this Court vacated the September 7, 2010 order and remanded for new counsel due to counsel's conflict of interest as raised by Appellant. Commonwealth v. Nero, 26 A.3d 1192 (Pa.Super.2011) (unpublished judgment order). After remand, new counsel was appointed, who filed an amended PCRA petition on April 25, 2011.

[58 A.3d 805]

After proper notice, the PCRA court dismissed Appellant's amended PCRA petition without a hearing on June 6, 2011.

Appellant again filed a timely notice of appeal raising a number of issues. On appeal, we held that Appellant had properly pled two issues of arguable merit, a potential Brady¹ violation and the legality of his sentence, raising legitimate factual issues. Nero III, supra at *4–9. Accordingly, on January 19, 2012, we vacated the PCRA court's order dismissing Appellant's PCRA petition and remanded for a hearing. Id. at *13. The PCRA court complied, conducting an evidentiary hearing on February 29, 2012 on Appellant's Brady issue, and taking the legality of sentence issue under advisement. By order filed March 28, 2012, the PCRA court dismissed Appellant's amended PCRA petition. Appellant filed a timely notice of appeal on April 20, 2012.²

On appeal, Appellant poses the following questions for our consideration. ³

A. Whether the sentencing court erred in failing to merge several of the criminal counts for purposes of sentencing resulting in an illegal sentence?

B. Whether the [C]ommonwealth committed a Brady violation as to failure to disclose predispostion [sic] to favorable treatment of codefendant in exchange for his testimony?

Appellant's Brief at 3.

We begin by noting the following standard of review, guiding our consideration of this appeal. “On appeal from the denial of PCRA relief, our standard of review calls for us to determine whether the ruling of the PCRA court is supported by the record and free of legal error.” Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa.Super.2012) (citation omitted). “The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record.” Commonwealth v. Garcia, 23 A.3d 1059, 1061 (Pa.Super.2011) (internal quotation marks and citation omitted), appeal denied,––– Pa. ––––, 38 A.3d 823 (2012). “The PCRA court's factual determinations are entitled to deference, but its legal determinations are subject to our plenary review.” Commonwealth v. Johnson, 600 Pa. 329, 966 A.2d 523, 532 (2009) (internal quotation marks and citations omitted).

[58 A.3d 806]

In his first issue, Appellant avers the trial court imposed an illegal sentence when it failed to merge the receiving stolen property charges with the counts charging violation of subsection (2) of owning, operating or conducting a chop shop (owning, operating or conducting a chop shop-illegally obtained/altered property) for purposes of sentencing. Appellant's Brief at 6. Appellant claims that his four counts of receiving stolen property were lesser-included offenses relative to his four corresponding counts of owning, operating or conducting a chop shop-illegally obtained/altered property. Id. Appellant argues that the elements required to prove a charge of receiving stolen property are subsumed in the elements required to prove a charge of owning, operating or conducting a chop shop-illegally obtained/altered property. Id. The PCRA court disagreed, holding “[a]lthough one may operate a chop shop by dealing in stolen vehicles and or stolen motor vehicle parts, the elements of the two crimes are different and the offenses do not merge.” PCRA Court Opinion, 3/28/12, at 6.

“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. Quintua, 56 A.3d 399, 400 (Pa.Super.2012) (citation omitted). “An illegal sentence must be vacated. 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) (citation omitted), appeal denied,––– Pa. ––––, 37 A.3d 1195 (2012).

Our legislature has defined the circumstances under which convictions for separate crimes may merge for the purpose of sentencing.

§ 9765. Merger of sentences

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.

42 Pa.C.S.A. § 9765.⁴

Our Supreme Court determined that

the plain language of Section 9765 reveals a legislative intent “to preclude the courts of this Commonwealth from merging sentences for two offenses that are based on a single criminal act unless all of the statutory elements of one of the offenses are included in the statutory elements of the other.” ... [Our Supreme Court] held that when each offense contains an element the other does not, merger is inappropriate.

Quintua, supra at 401,quoting Commonwealth v. Baldwin, 604 Pa. 34, 985 A.2d 830, 837 (2009). In essence, “[o]ur merger statute merely codified the adoption by the [Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981) ]/ [Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994) ]

[58 A.3d 807]

decisions of the Blockburger⁵ test and upholds the long-standing merger doctrine relative to greater and lesser-included offenses.” Commonwealth v. Wade, 33 A.3d 108, 120 (Pa.Super.2011), appeal denied, ––– Pa. ––––, 51 A.3d 839 (2012).

To determine whether offenses are greater and lesser-included offenses, we compare the elements of the offenses. If the elements of the lesser offense are all included within the elements of the greater offense and the greater offense has at least one additional element, which is different, then the sentences merge. Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20, 24 (1994). If both crimes require proof of at least one element that the other does not, then the sentences do not merge. Id.
Commonwealth v. Johnson, 874 A.2d 66, 70–71 (Pa.Super.2005), appeal denied,587 Pa. 720, 899 A.2d 1122 (2006).⁶

With these principles in mind, we proceed to examine the respective elements of both statutes to determine if each requires proof of an element not required by the other. The statute defining the crime of receiving stolen property provides as follows.

§ 3925. Receiving stolen property

(a) Offense defined.—A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

(b) Definition.—As used in this section the word “receiving” means acquiring possession, control or title, or lending on the security of the property.

18 Pa.C.S.A. § 3925.

The elements...