Commonwealth v. Bowers

1

COMMONWEALTH OF PENNSYLVANIA v. MICHELLE BOWERS Appellant

No. 2722 EDA 2023

No. J-A17024-24

Superior Court of Pennsylvania

November 26, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered September 27, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001116-2022

BEFORE: BOWES, J., NICHOLS, J., and SULLIVAN, J.

MEMORANDUM

NICHOLS, J.

Appellant Michelle Bowers appeals from the judgment of sentence imposed following her bench trial conviction for conspiracy to commit robbery and related offenses. After careful review, we affirm Appellant's convictions, but vacate the judgment of sentence and remand for resentencing.

We adopt the trial court's summary of the facts. See Trial Ct. Op., 12/5/23, at 4-8.^[1] Briefly, on December 22, 2021, at approximately 6:00 p.m. Appellant drove a Dodge Charger to the Super Drugs Pharmacy on North 5th Street in Philadelphia and parked behind it. Michael Nixon, Appellant's co-defendant, exited the Charger. Mr. Nixon walked into the employee parking lot and approached the back door of the pharmacy. When Christina Palengas, the pharmacist, opened the back door, Mr. Nixon pointed a gun at her and entered the pharmacy. Mr. Nixon demanded that Ms. Palengas, and other pharmacy employees, fill bags with narcotics. While Mr. Nixon was inside, Angel Malvonado, a delivery driver for the pharmacy, parked in the employee parking lot. When Mr. Malvonado opened the back door of the pharmacy, Mr. Nixon tried to force Mr. Malvonado inside. Mr. Malvonado fled, and Mr. Nixon pursued him. Appellant, sitting in the driver's seat of the Charger, honked its horn and pointed at Mr. Malvonado. Mr. Nixon struck Mr. Malvonado with the gun and kicked him while he was on the ground. Mr. Nixon then reentered the pharmacy and retrieved the bags filled with bottles of narcotics. Mr. Nixon got in the Charger and Appellant drove off as a police car was approaching her from behind. Mr. Malvonado told the police officers about the robbery of the pharmacy and the officers set off in pursuit. Eventually, approximately twenty other police officers took part in a high-speed chase of Appellant and Mr. Nixon. During the pursuit, Mr. Nixon threw items out of the window of the Charger. The police eventually apprehended Appellant and Mr. Nixon. The police recovered pill bottles and loose pills from the Charger.

Following a bench trial held on September 29, 2022 and October 7, 2022, the trial court found Appellant guilty of conspiracy to commit robbery, robbery, theft by unlawful taking, receiving stolen property, recklessly endangering another person (REAP), and fleeing or attempting to elude police officer.^[2]

On June 15, 2023, the trial court sentenced Appellant to concurrent terms of two to four years' incarceration for robbery and conspiracy. Additionally, the trial court imposed terms of ten years' probation for both robbery and conspiracy, which was to run concurrent to the terms of incarceration for those convictions. The trial court also sentenced Appellant to two years' probation for REAP and seven years' probation for fleeing or attempting to elude police officer, which ran consecutive to the sentences of incarceration.

Appellant filed a timely post-sentence motion challenging the sufficiency and the weight of the evidence, which the trial court denied on September 27, 2023. That same day, the trial court entered an amended sentencing order (backdated to June 15, 2023) clarifying that Appellant's sentences for robbery and conspiracy run concurrently and ordering that the Pennsylvania Parole Board supervise Appellant's probation instead of the Philadelphia Adult Probation and Parole Department. See Am. Sentencing Order, 9/27/23, at 1.

Appellant filed a timely notice of appeal.^[3] Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises two issues on appeal:

1. Whether the evidence presented at trial and all reasonable inferences derived therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to establish all elements of the offenses of conspiracy, robbery, theft, and receiving stolen property beyond a reasonable doubt?

2. Appellant's convictions for conspiracy, robbery, theft, and receiving stolen property [are] against the weight of the evidence and shocks the conscience where it rests on no more than mere suspicion and surmise.

Appellant's Brief at 1 (formatting altered).

Following our review of the record, the parties' briefs, and the relevant law, we affirm on the basis of the trial court's opinion. See Trial Ct. Op. at 8-17.^[4] The trial court thoroughly addressed Appellant's claims and correctly concluded that she was not entitled to relief. Specifically, we agree with the trial court that there was sufficient evidence to sustain Appellant's convictions. See id. at 8-16. Further, we discern no abuse of discretion by the trial court in rejecting Appellant's weight claim. See id. at 16-17. Therefore, we affirm Appellant's convictions.^[5]

Legality of Sentence

Finally, we must address the legality of Appellant's sentence. See Commonwealth v. Wright, 276 A.3d 821, 827 (Pa. Super. 2022) (noting that questions regarding the legality of the sentence questions "are not waivable and may be raised sua sponte on direct review by this Court" (citation omitted and formatting altered)). A challenge to the legality of the sentence "presents a pure question of law. As such, our scope of review is plenary and our standard of review de novo." Id. (citations omitted and formatting altered).

"If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated." Commonwealth v. Warunek, 279 A.3d 52, 54 (Pa. Super. 2022) (citation omitted and some formatting altered).

This Court has previously considered whether a defendant can simultaneously serve a term of probation while serving a term of confinement. Commonwealth v. Allshouse, 33 A.3d 31 (Pa. Super. 2011), overruled on other grounds by Commonwealth v. Simmons, 262 A.3d 512 (Pa. Super. 2021) (en banc). The Allshouse Court held that there was "no support in the Pennsylvania statutes that the General Assembly intended to permit defendants to serve a term of probation and a term of state incarceration simultaneously. To do [so] would run contrary to the various policy considerations underlying sentencing." Allshouse, 33 A.3d at 36 (footnotes omitted); see also Commonwealth v. Brown, 145 A.3d 184, 187-88 (Pa. Super. 2016) (applying Allshouse and concluding that a defendant may not serve terms of incarceration and probation concurrently); Commonwealth v. Patel, 1610 EDA 2023, 2024 WL 3440448, at *5 (Pa. Super. filed Jul. 17, 2024) (unpublished mem.).^[6] Further, this Court has stated that

nothing in the Sentencing Code permits a consecutive order of probation to be aggregated with a sentence of total confinement. Rather, 42 Pa.C.S. § 9757 - regarding aggregation of sentences - only applies to "consecutive sentences of total confinement." 42 Pa.C.S. § 9757. An order of probation is, obviously, not a sentence of "total confinement." Therefore, under the Sentencing Code, a sentence of total confinement and a consecutive order of probation may not be aggregated and viewed as one.

Simmons, 262 A.3d at 524 (some citations, footnotes, and emphasis omitted).

Here, the trial court sentenced Appellant to concurrent terms of two to four years' incarceration for robbery and conspiracy. See Am. Sentencing Order, 9/27/23, at 1. The trial court also imposed terms of ten years' concurrent probation for each of those counts. See id. Because a defendant cannot simultaneously serve terms of incarceration and probation, we are constrained to conclude that Appellant's sentence is illegal.^[7] See Simmons, 262 A.3d at 524; Allshouse, 33 A.3d at 36.

Accordingly, while we affirm Appellant's convictions, we vacate her judgment of sentence and remand for resentencing. See Warunek, 279 A.3d at 54; see also Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006) (stating that if this Court's "disposition upsets the overall sentencing scheme of the trial court, we must remand so that the court can restructure its sentence plan" (citation omitted)); Patel, 2024 WL 3440448, at *5 (stating that "[a]s our prevailing case law prohibits concurrent terms of imprisonment and probation, we must remand for the lower court to rectify [the defendant's] sentencing scheme and to ensure that an illegal sentence has not been imposed" (some formatting altered)).

Judgment of sentence vacated. Case remanded for resentencing consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

IN THE COURT OF COMMON PLEAS FOR THE COUNTY OF PHILADELPHIA CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

v.

MICHELLE BOWERS

NO. CP-51-CR-001116-2022

Superior Court No. 2722 EDA 2023

OPINION

DIANA L. ANHALT, J.

On July 25, 2022, Appellant was found guilty after a waiver trial of one count of Robbery^[1], one count of Conspiracy^[2], one count of Theft^[3], one count of Receiving Stolen Property^[4], one count of Recklessly Endangering Another Person^[5], and one count of Fleeing or Attempting to Elude an officer^[6].

On June 15, 2023, the court imposed sentences of 2 to 4 years on the robbery and an additional 10 years concurrent probation, and 2 to 4 years on conspiracy and 10 years concurrent probation 2 years' probation on recklessly endangering another person and 7 years of consecutive probation on the count of eluting an officer^[7]. Appellant filed a timely Notice of Appeal to the Superior Court on October 24, 2023 and brings the...