COMMONWEALTH OF PENNSYLVANIA v. BLAISE ALLEN PETERS

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1 Vol COMMONWEALTH OF PENNSYLVANIA v. BLAISE ALLEN PETERS Criminal Law: Cross-Examination; Sentencing; Merger 1. The determination of the scope and limits of cross-examination are within the discretion of the trial court, and will not be disturbed on appeal absent a clear abuse of discretion or an error of law. 2. A sentence will not be overturned unless the record shows a manifest abuse of discretion, which is more than mere error in judgment. A manifest abuse of discretion may be found only where the record establishes that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. 3. The doctrine of merger is a rule of statutory construction designed to determine whether the legislature intended the punishment of one offense to encompass that for another offense arising from the same criminal act or transaction. Furthermore, the same facts may support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser included offenses. 4. In support of its decisions during trial and sentencing, the court cited the trial record of the cross-examination of witnesses by the defendant, as well as the statements of the court at the time of sentencing. COMMONWEALTH OF PENNSYLVANIA v. BLAISE ALLEN PETERS. IN THE COURT OF COMMON PLEAS OF BERKS COUNTY, PENNSYLVANIA. CRIMINAL DIVISION No. CP-06-CR /Superior Court No.: 1154 MDA 2011 John Adams, Esq., Berks County District Attorney, Attorney for the Commonwealth Eric J. Taylor, Esq., Berks County Assistant Public Defender, Attorney for the Defendant MEMORANDUM OPINION, Ludgate, J. Dated: November 18, 2011 Blaise Allen Peters (hereinafter Defendant ) appeals from the judgment of sentence entered by this Court following his convictions of Kidnapping and related offenses. The Defendant raises three issues on appeal, none of which possesses any merit. Therefore, the Court respectfully requests that the Defendant s appeal be DENIED. I. Procedural History On April 28, 2011, following trial by jury, the Defendant was convicted of the following offenses: Count 1, Kidnapping, 18 Pa.C.S.A. Sec. 2901(a)(3); Count 3, Robbery of Motor Vehicle, 18 Pa.C.S.A. Sec. 3702(a); Count 5, Robbery, 18 Pa.C.S.A. Sec. 3701(a)(1)(iv); Count 11, Simple Assault, 18 Pa.C.S.A. Sec. 2701(a)(1);

2 116 Count 13, Terroristic Threats, 18 Pa.C.S.A. Sec. 2706(a)(1); Count 17, Recklessly Endangering Another Person, 18 Pa.C.S.A. Sec. 2705; Count 19, False Imprisonment, 18 Pa.C.S.A. Sec. 2903(a). On June 3, 2011, the Court sentenced the Defendant as follows: Count 1, Kidnapping, 18 Pa.C.S.A. Sec. 2901(a)(3): not less than fifty-seven (57) months nor more than one hundred fourteen (114) months to the Bureau of Corrections for confinement in a State Correctional Facility; Count 3, Robbery of Motor Vehicle, 18 Pa.C.S.A. Sec. 3702(a): not less than twentyseven (27) months nor more than fifty-four (54) months to the Bureau of Corrections for confinement in a State Correctional Facility, commencing at the expiration of the sentence imposed in Count 1; Count 5, Robbery, 18 Pa.C.S.A. Sec. 3701(a) (1)(iv): not less than fifteen (15) months nor more than thirty (30) months to the Bureau of Corrections for confinement in a State Correctional Facility, commencing at the expiration of the sentence imposed in Count 3; Count 13, Terroristic Threats, 18 Pa.C.S.A. Sec. 2706(a)(1): probation for a period of five (5) years under the supervision of the Pennsylvania Board of Parole, commencing at the expiration of the sentence imposed in Count 5; Count 17, Recklessly Endangering Another Person, 18 Pa.C.S.A. Sec. 2705: probation for a period of two (2) years under the supervision of the Pennsylvania Board of Parole, commencing at the expiration of the sentence imposed in Count 5 and concurrent with the sentence imposed in Count 13. Vol. 104 On June 9, 2011, the Defendant filed a Post-Sentence Motion, which was denied by the Court on June 13, On July 1, 2011, the Defendant filed a Notice of Appeal with the Superior Court of Pennsylvania.

3 Vol On July 20, 2011, the Defendant submitted a Concise Statement of the Errors Complained of on Appeal. This opinion is written pursuant to Pa.R.A.P. 1925(a). II. Factual Background A succinct recounting of the facts in the instant case is appropriate. At approximately 11 p.m. on July 24, 2010, Marquis Wyman (hereinafter, Victim ) arrived at a birthday party for Chris Hall in Tilden Township, Berks County, Pennsylvania. See N.T. 4/26/11 at 42; N.T. 4/27/11 at At approximately 11:30 p.m., Jose Cisneros-Martinez, Russell Girard, and Blaise Peters (hereinafter, Defendant ) asked the Victim for a ride home. The Victim testified that he left the party at approximately 11:45 p.m. with the three aforementioned individuals in the Victim s car. See N.T. 4/27/11 at Before dropping off the three individuals, the Victim drove to a house to purchase $50 worth of cocaine for Chris Hall. See N.T. 4/26/11 at 82; N.T. 4/27/11 at Cisneros-Martinez testified that when the Victim exited his vehicle to pick up the cocaine, the Defendant suggested that the three individuals lead the Victim to a deserted back road and steal the Victim s money and cocaine. See N.T. 4/26/11 at After the Victim returned from the drug transaction, the Victim drove to a gas station, filled the tank with $10 given to him by Cisneros-Martinez, and proceeded to drop off the Defendant. See N.T. 4/27/11 at 131. Next, Cisneros-Martinez and Girard directed the Victim to drive to a house, set far back from the road and in a secluded area. The Victim thought he was dropping them off at one of their homes. See N.T. 4/27/11 at The Victim stopped the car at the end of the long driveway in front of the house and exited the vehicle to urinate. As the Victim was turning around to return to his vehicle, Cisneros-Martinez and Girard attacked him, stuffed him in the trunk of the Victim s vehicle, and drove away. The Victim testified that while he was trapped in the trunk, the car was moving erratically and loud music was blasting. See N.T. 4/27/11 at Cisneros-Martinez and Girard drove to the Defendant s house and picked him up. See N.T. 4/26/11 at Cisneros-Martinez testified that after he told the Defendant that the Victim was in the trunk of the vehicle, the Defendant grabbed a knife from his kitchen and said that they would have to kill the Victim to avoid being sent to jail. See N.T. 4/26/11 at The Victim testified that the first time the trunk was opened after he was initially stuffed inside, the Victim could see that he had been driven into the woods and the Defendant had returned. See N.T. 4/27/11 at After opening the trunk, Cisneros-Martinez, Girard, and the Defendant punched the Victim and asked where he was hiding his money. The Defendant also repeatedly asked about the whereabouts of the cocaine. See N.T. 4/27/11 at

4 118 Vol. 104 Over the course of the next several hours, Cisneros-Martinez, Girard, and the Defendant followed the same pattern: namely, they drove erratically while blasting music and discussing ways to kill the Victim and conceal evidence, and they stopped the car several times to open the trunk and beat and threaten the Victim. See N.T. 4/27/11 at During one of the stops, the Defendant pressed a knife in a menacing fashion against the Victim s stomach. See N.T. 4/27/11 at The Victim testified that he was struggling mightily to breathe while trapped in the trunk and yelled over and over again that he was suffocating. See N.T. 4/27/11 at Eventually, the Defendant spoke to the Victim through the back seat of the vehicle and told the Victim that the Defendant was going to pull over the vehicle and let the Victim out of the trunk. After he pulled over and opened the trunk, the Defendant had the Victim move to the passenger seat of the vehicle. See N.T. 4/27/11 at The Defendant drove to a deserted area and threatened the Victim not to leave for about five minutes or the Victim would be shot. See N.T. 4/27/11 at 156. The Defendant took the Victim s cell phone so the Victim would not be able to call the police, and the Defendant walked home. See N.T. 4/27/11 at 157. Badly shaken, the Victim waited for several minutes before driving home. See N.T. 4/27/11 at The Victim then woke his parents, who noticed how severely beaten the Victim was and called for an ambulance. See N.T. 4/26/11 at 26-28; N.T. 4/27/11 at Following an investigation, the Defendant was arrested and charged. III. Analysis and Legal Conclusions The Defendant alleges the following three points of error: 1. The trial court erred in restricting Appellant in his cross examination of his co-defendants concerning the maximum sentences that they could have received from all of their charges, rather than only the charges that they pled guilty to, which precluded Appellant from completely impeaching them and fully revealing their interest and bias. 2. The sentencing court abused its discretion by imposing an aggregate sentence of 99 months to 198 months prison which violated the Sentencing Guidelines and the factors enumerated therein, because the sentencing court failed to consider Appellant s rehabilitative needs while ignoring mitigating factors such as Appellant s prior record score of zero, the facts in the case, and the

5 Vol. 104 testimony presented during sentencing, and instead the trial court imposed manifestly excessive and clearly unreasonable sentences, which included three consecutive prison sentences and a sentence for kidnapping in the aggravated range without sufficient reasons. 3. The trial court imposed an illegal sentence where it sentenced Appellant for REAP, 18 Pa.C.S.A. 2705, because this conviction should have merged with Appellant s robbery conviction under 18 Pa.C.S.A. 3701(a)(1)(iv). 119 The Court will consider each of the Defendant s arguments in turn. 1. The trial court erred in restricting Appellant in his cross examination of his co-defendants concerning the maximum sentences that they could have received from all of their charges, rather than only the charges that they pled guilty to, which precluded Appellant from completely impeaching them and fully revealing their interest and bias. At the outset, the Court notes that the Defendant waived his first argument on appeal by not raising it in his post-trial motion. The Court contends that the argument should fail for this reason, but the Court will nonetheless analyze the argument on its merits for the benefit of the appellate court. In his first argument on appeal, the Defendant contends that the Court erred in restricting the extent of the Defendant s cross examination of Commonwealth witnesses Cisneros-Martinez and Girard. In Commonwealth v. Davis, 17 A.3d 390, 395 (Pa. Super. 2011), the Superior Court of Pennsylvania stated that The determination of the scope and limits of cross-examination are within the discretion of the trial court, and we cannot reverse those findings absent a clear abuse of discretion or an error of law. An abuse of discretion is not a mere error in judgment, but, rather, involves

6 120 bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law. Furthermore, when a trial court indicates the reason for its decision our scope of review is limited to an examination of the stated reason. (internal citations omitted). Vol. 104 Prior to the Defendant s trial, Cisneros-Martinez and Girard had entered into plea agreements with the Commonwealth. The Court ruled that the Defendant s Attorney may cross examine Cisneros-Martinez and Girard about the possible maximum sentences corresponding to the charges against them, but the Court specified that the Defendant s Attorney must limit his questions on cross examination to what was contained in the witnesses guilty plea colloquies. The Court explained the restriction on the record: [Defendant s Attorney]: [ ] I wanted to ask [Cisneros-Martinez and Girard], were you aware that the maximum sentence for kidnapping was 20 years when you took this plea? Because he didn t receive 20 years. He received two and a half years. [Commonwealth s Attorney]: Then that also asks them to make a legal conclusion. The Court: Well, it depends on what s written in the colloquy. They re not going to know that. They re going to know that what they pled guilty to, how many years they were looking at, and then it was a plea agreement. That s what they re going to know. You make the same point. Let s not go so off the track that the jury s not going to understand what you re doing. I don t see how that s helpful. N.T. 4/26/11 at The Court strongly asserts that the decision to limit the scope of the cross examinations was not erroneous. Moreover, even if the appellate court were to determine the ruling was in error, the trial court s decision does not constitute reversible error because the testimony of Cisneros-Martinez and Girard was not the sole evidence against the Defendant and, therefore, cannot be said to have controlled the outcome of the case. See Commonwealth v. Hyland, 875 A.2d 1175 (Pa. Super. 2005) (assuming the trial court erred in limiting cross-examination

7 Vol of the Commonwealth s witness to reveal possible bias, new trial will only be required if the error controlled the outcome of the case). In addition, the Court contends that the cross-examinations of Cisneros-Martinez and Girard adequately exposed their potential biases. During trial, the Defendant s Attorney questioned Cisneros-Martinez as follows: [Defendant s Attorney]: Mr. Martinez, I m going to show you a document that s been marked as Defendant s Exhibit 2. Can you identify that document for me, please? [Cisneros-Martinez]: Yeah, I think it s my plea bargain, or whatever. [Defendant s Attorney]: Okay. It s your plea bargain? [Cisneros-Martinez]: Yeah. [Defendant s Attorney]: That you made this morning. [Cisneros-Martinez]: Yeah. [Defendant s Attorney]: And it indicates that you pled to kidnapping? [Cisneros-Martinez]: Uh-huh. [Defendant s Attorney]: You received a sentence of 2 and a half to 10 years, is that correct? [Defendant s Attorney]: And what s the maximum you could have received? [Cisneros-Martinez]: Ten years. [Defendant s Attorney]: You also pled guilty to robbery?

8 122 [Defendant s Attorney]: And you received a sentence of 2 and a half to 10 years, correct? [Defendant s Attorney]: And what was the maximum you could have received? [Cisneros-Martinez]: Ten. [Defendant s Attorney]: Ten years? [Defendant s Attorney]: You also pleaded guilty to conspiracy to commit robbery, and you received a sentence of 2 and a half to 10 years, correct? [Defendant s Attorney]: And you could have received how much? [Cisneros-Martinez]: Ten. [Defendant s Attorney]: And, finally, you pled guilty to simple assault and you received [Defendant s Attorney]: -- a four month to two year concurrent sentence, is that correct? [Defendant s Attorney]: And you could have received a maximum sentence of how much? [Cisneros-Martinez]: Two years. [Defendant s Attorney]: So what is the total amount of maximum sentence you could have Vol. 104

9 Vol. 104 received had you not received that plea bargain? [Cisneros-Martinez]: Thirty-two years. [Defendant s Attorney]: Okay. So in return for your agreeing to plead guilty rather than facing a maximum possible sentence of 32 years, you received a sentence of 2 and a half to 10 years, is that correct? N.T. 4/26/11 at The Defendant s Attorney later questioned Girard about his plea agreement as follows: [Defendant s Attorney]: Would you agree with me that the maximum sentence you could have received would have been 32 years? [Girard]: No. [Defendant s Attorney]: I beg your pardon, 24 years? [Girard]: Yes. If run consecutive, yes. [Defendant s Attorney]: And that instead, you received a sentence of 9 to 23 months, is that correct? [Girard]: Nine to twenty-three months followed by five years of probation. N.T. 4/27/11 at 222. These excerpts from the record illustrate that, despite the Defendant s contention on appeal, the Defendant s Attorney adequately exposed the potential biases of Cisneros-Martinez and Girard during trial. For the above-stated reasons, the Court believes that the Defendant s first argument fails. 2. The sentencing court abused its discretion by imposing an aggregate sentence of 99 months to 198 months prison which

10 124 violated the Sentencing Guidelines and the factors enumerated therein, because the sentencing court failed to consider Appellant s rehabilitative needs while ignoring mitigating factors such as Appellant s prior record score of zero, the facts in the case, and the testimony presented during sentencing, and instead the trial court imposed manifestly excessive and clearly unreasonable sentences, which included three consecutive prison sentences and a sentence for kidnapping in the aggravated range without sufficient reasons. Vol. 104 The Defendant s second argument on appeal is that the Court abused its discretion in imposing an aggregate sentence of 99 to 198 months in prison. A sentence will not be overturned unless the record shows a manifest abuse of discretion, which is more than mere error in judgment. See Commonwealth v. Redman, 864 A.2d 566, 569 (Pa. Super. 2004). A manifest abuse of discretion may be found only where the record establishes that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision. Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (citation omitted). In the instant case, the standard sentencing range for Count One was thirty-one (31) to forty-five (45) months, aggravated to fifty-seven (57) months and mitigated to nineteen (19) months. The Count Three standard range was twenty-one (21) to thirty-three (33) months, aggravated to forty-five (45) months and mitigated to nine (9) months. The Count Five standard range was twelve (12) to twenty (20) months, aggravated to twenty-six (26) months and mitigated to six (6) months. The standard sentencing range for Count Thirteen was three (3) to four (4) months, aggravated to seven (7) months and mitigated to restorative sanctions. The Count Seventeen standard range was three (3) to four (4) months, aggravated to seven (7) months and mitigated to restorative sanctions. See N.T., Sentencing Hearing, 6/3/11 at 5-6. At the time of sentencing, the Court stated the following on the record: The Court here today, has considered the age of the defendant. The Court has considered the presentence investigation report which he adopted. The Court has considered the guideline ranges which were made a part of the record here today, as well as on earlier occasions.

11 Vol The Court has considered the statement of the victim and the victim s mother. The Court has considered the witnesses who testified on behalf of the defendant. The Court has considered the facts upon which the jury based its verdict. The testimony of what was done to the victim here is bone chilling. The torture, the threats against his mother, and the nieces and nephews of Mr. Wyman. The beatings that went on before Mr. Blaise Peters appeared and continued after he appeared at the scene, and brandishing the knife for the first time. Putting the victim in a trunk of a car and leaving him there for three to four hours, ignoring the fact that Mr. Wyman s nose may have been broken because it bled so badly. And all of this is done without any regards to the sanctity of human life. Russell Girard testified how this defendant stated they had to kill Mr. Wyman because, quote, we had kidnapped him and we are not going to get away with it, end quote. Jose Cisneros-Martinez, the other co-defendant testified that Mr., Peters stated to him, quote, we have to kill him or we go to jail, end quote. There can be no more clear statement of the intent of Mr. Peters. The robbery of Mr. Wyman is clear and the robbery of his car is clear. There was a planned and coordinated attack by Mr. Peters. The Court finds that he was the ringleader of Russell and Jose. They paid for their participation in this crime, and the issue is now Mr. Peters is to be sentenced for his crimes. In this case, several times the Court heard pleas for compassion. And this Court has compassion for the victim. And in this case, the victim, who by his own statements here today, cannot work. That before this he worked in the Philadelphia

12 126 Port Authority with Homeland Security. Today he is an applicant for Social Security disability at the age of 23. He still has nightmares. He has to check the locks in the house over and over. He shakes, which was visibility apparent to the Court here today. And it represents a total change in the life of Mr. Wyman. The Court has considered the trial testimony related to the facts the jury had to have accepted as true to find the defendant guilty of the offenses that we are here today for sentencing. Those facts are so chilling to indicate such ruthless behavior, regardless of human decency that any lesser sentence here would depreciate the seriousness of the crimes. N.T., Sentencing Hearing, 6/3/11 at Vol. 104 In light of the heinous nature of the Defendant s crimes and upon reconsideration of the record, the Court concludes that the ultimate sentence to an aggregate term of ninety-nine (99) to one hundred ninety-eight (198) months in prison was appropriate and certainly falls far short of the manifest abuse of discretion standard. Cf. Redman, supra, 864 A.2d at 569. Therefore, the Defendant s second argument on appeal is without merit. 3. The trial court imposed an illegal sentence where it sentenced Appellant for REAP, 18 Pa.C.S.A. 2705, because this conviction should have merged with Appellant s robbery conviction under 18 Pa.C.S.A. 3701(a)(1)(iv). Finally, the Defendant claims that the Court imposed an illegal sentence in refusing to merge the Defendant s conviction for Recklessly Endangering Another Person ( REAP ), 18 Pa.C.S.A. Sec. 2705, with Robbery, 18 Pa.C.S.A. Sec. 3701(a) (1)(iv). The doctrine of merger is a rule of statutory construction designed to determine whether the legislature intended the punishment of one offense to encompass that for another offense arising from the same criminal act or transaction. Commonwealth v. Evans, 901 A.2d 528, 536 (Pa. Super. 2006) (citing Commonwealth v. Kitchen, 814 A.2d 209, 215 (Pa. Super. 2002)). Furthermore, the same facts may support multiple convictions and separate sentences for each conviction except in cases

13 Vol where the offenses are greater and lesser included offenses. Evans, 901 A.2d at 536 (citing Commonwealth v. Thomas, 879 A.2d 246, 263 (Pa. Super. 2005)). Under 18 Pa.C.S.A. Sec. 2705, an individual commits the crime of REAP if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. An individual commits Robbery under 18 Pa.C.S.A. Sec. 3701(a)(1)(iv) if in the course of committing a theft, he inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury[.] Admittedly, there is precedent in this Commonwealth for merger of the crimes of REAP and Robbery. See Commonwealth v. Walls, 449 A.2d 690 (Pa. Super. 1982); Commonwealth v. Eberts, 422 A.2d 1154 (Pa. Super. 1980). However, the Superior Court has recognized that its analytical approach to the merger doctrine has evolved over the years, and therefore, the Superior Court should no longer rely on cases such as Walls and Ebert. See Commonwealth v. Anderson, 650 A.2d 20, (Pa. 1994) (clarifying that so long as the crimes are not greater and lesser included offenses, [defendants] are liable for as many crimes as they are convicted of and may be sentenced for each such crime ). REAP requires that a perpetrator possess a reckless mens rea and does not impact on the state of mind of the victim. Robbery, on the other hand, does not necessitate a particular mens rea ( inflicts bodily injury upon another or threatens another with or ) (18 Pa.C.S.A. Sec. 3701(a)(1)(iv), emphasis added), and the Robbery statute is written from the victim s perspective, which is irrelevant under the REAP language. More specifically, to commit REAP, an individual need only engage in conduct that places or tends to place another in danger, in an objective sense, regardless of the victim s perception of what is happening. To commit Robbery, an individual must either cause or threaten injury or cause another to perceive a threat of injury. This difference is significant and indicates that the offenses should not be considered greater and lesser included offenses, and, thus, the sentences should not merge. See Commonwealth v. Payne, 868 A.2d 1157 (Pa. Super. 2005) (finding that aggravated assault requires a mental state that robbery does not, and, therefore, the offenses do not merge). The Court also notes that REAP, which the Defendant argues should be the lesser included offense, involves death or serious bodily injury, whereas Robbery, which the Defendant believes should subsume the REAP offense, involves only bodily injury or immediate bodily injury. This asymmetry further shows that REAP and Robbery are not intended to be greater and lesser included offenses. Because REAP and Robbery are not greater and lesser included offenses, the Defendant should face a separate sentence for each conviction. Therefore, the Defendant s third argument on appeal fails. 4. Conclusion For all the aforementioned reasons, the Court finds the Defendant s three

14 128 Vol. 104 arguments on appeal to be without merit, and the Court respectfully requests that the Defendant s appeal be DENIED. BY THE COURT: J.