Com. v. Polanco-Cano, I.
Com. v. Polanco-Cano, I. No. 463 MDA 2017
| Pa. Super. Ct. | Aug 22, 2017Background
- On October 2, 2015, police responded to a disturbance and found the victim with multiple stab wounds to head, neck, forearms, chest, and shoulders; the defendant, Israel Polanco‑Cano, had bloody arms and hand lacerations.
- Victim testified Polanco‑Cano stabbed her about 25 times during a single episode after she asked him to leave an apartment.
- Police found seven small bags of heroin on Polanco‑Cano; drug and firearms charges were nolle prossed before trial.
- A jury convicted Polanco‑Cano of attempted criminal homicide and aggravated assault.
- Trial court sentenced him to 16–40 years for attempted homicide and a concurrent 6–12 years for aggravated assault.
- On appeal Polanco‑Cano argued the aggravated assault conviction should merge with attempted homicide for sentencing; the Superior Court agreed and vacated the aggravated assault sentence while affirming convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether aggravated assault must merge with attempted criminal homicide for sentencing | Commonwealth implicitly argued separate convictions/sentences were permissible because distinct statutory elements or separate acts could exist | Polanco‑Cano argued both offenses arose from a single criminal act (the multi‑stab episode), so aggravated assault is subsumed by attempted homicide and must merge | Court held aggravated assault merged into attempted homicide because the stab‑bing was a single criminal episode and aggravated assault is necessarily included in attempted homicide; aggravated assault sentence vacated (convictions affirmed) |
Key Cases Cited
- Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994) (holding aggravated assault merges with attempted murder when both arise from a single act and elements of aggravated assault are subsumed by attempted murder)
- Commonwealth v. Cavanaugh, 420 A.2d 674 (Pa. Super. 1980) (test for merger is whether one crime necessarily involves the other, not whether acts are successive)
- Commonwealth v. Wesley, 860 A.2d 564 (Pa. Super. 2004) (merger not required where defendant committed two distinct criminal acts in sequence)
- Commonwealth v. Belsar, 676 A.2d 632 (Pa. 1996) (separate sentences upheld where defendant’s multiple actions constituted distinct criminal acts)
- Commonwealth v. Jenkins, 96 A.3d 1055 (Pa. Super. 2014) (court must reference the crimes as charged to determine whether offenses arose from a single episode for merger)
- Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (de novo review applies to legality of sentence)
- Commonwealth v. Duffy, 832 A.2d 1132 (Pa. Super. 2003) (merger claims challenge sentence legality and cannot be waived)
- Commonwealth v. Murphy, 462 A.2d 853 (Pa. Super. 1983) (no remand required when concurrent sentence disposition causes no disruption to sentencing scheme)