*1 Pennsylvania, Appellee, COMMONWEALTH ANDERSON, Appellant. Keith Steven Pennsylvania. Superior Court Sept. Argued 1991. July
Filed *4 appellant. Reading, for Roderick Snyder, G. Com., for Jr., Philadelphia, Dist. Burns, Atty., Asst.
Hugh appellee. Defender, Philadelphia, Asst. Bridge, S. Public
Bradley curiae. amicus SOLE, OLSZEWSKI, DEL McEWEN, WIEAND,
Before HUDOCK, BECK, POPOVICH, TAMILIA, JOHNSON JJ.
HUDOCK, Judge. imposed judgment is an from the sentence appeal This him of jury Anderson after a convicted an instru- murder,1 possession assault2 and motions were post-verdict filed Timely ment of crime.3 was court and Anderson sentenced denied trial of not less than imprisonment terms of serve consecutive murder, not eight years nor more than for four years six nor more than twelve less than assault, than years than one nor more not less A appeal of crime. direct an instrument possession We affirm. this Court followed. 1983). 901(a) 2501(a) (Purdon § §
1. 18 Pa.C.S. (Purdon 2702(a)(1) Supp.1991). 2. Pa.C.S. & § 907(a) (Purdon 1983). 18 Pa.C.S. § *5 208 brief,
When defense counsel failed to file appellate an appeal Superior Anderson’s direct to the Court was dis- relief, to his petition post missed. Pursuant conviction however, Superior granted Court right Anderson the to tunc, pro nunc appeal file a direct limited to the issues previously post-trial raised motions. Before a three- Court, panel member of this charged Anderson trial (1) court three errors: refusing permit Anderson to conduct demonstration regarding before the jury manner he held usually shotgun; which refusing to grant a new trial because of publicity; adverse mid-trial and (3) failing merge his for aggravated convictions attempt sentencing criminal murder for purposes.
The found error panel no on the trial part court’s regarding Anderson’s first second challenges. On the however, issue merger, panel of held that is a lesser included of attempted offense and therefore the merged sentencing.4 convictions Pur decision, suant to the panel’s judgment sentence was vacated and the case was for resentencing. remanded The Commonwealth’s Petition for Reargument En Banc was granted Anderson because the conflict the panel’s deci sion created Superior panel decision, with another Court Fuller, v. Pa.Super. A.2d
The same three issues presented to the
are
panel
before
en banc. sitting
as
facts
by
summarized
trial court are as follows:
below,
As will be discussed
the Anderson
relied on Common-
Shurgalla,
(1988),
wealth
The shared the defendant home 1987 at the of October nine old DeBooth, year her victim, Norma the with sink the kitchen standing at was Ms. DeBooth son. of the in the back shot she was dinner when preparing alleges the defendant Wile the defendant. neck [sic] off, it went gun the when cleaning merely he was that in court that open DeBooth, testified paralyzed, now Ms. shoot her going to told her he was in fact defendant shot. actually she was immediately before 1-2. p. at Opinion Trial Court trial, counsel defense at examination During direct rifle hold “Now, normally your Anderson, you how do asked prosecutor objected something?” aim it at you when objection. sustained the trial court question this and the response in proof offer of made no Defense counsel Post-trial, Anderson revisited pursued. not issue was him ruling prevented issue, that the trial court’s asserting shooting had been that the establishing jury for the from would have demonstration Anderson claims the accidental. he shooting occurred while that the his version bolstered shotgun, and cleaning his kitchen table seated at the was testimony on the victim’s have cast doubt that it would standing upright. Anderson shot her while In this Common- argument. merit We find no judge in the trial wealth, discretion is vested “wide in the to be made experiments or demonstrations permitting Thomas, 394 v. jury.” of the presence (1990) (quoting Com- 316, 323, A.2d Pa.Super. 158, 165, 417 A.2d Soli, monwealth reasoned, “The issue (1979)). proper court The trial gun holds normally the defendant discussion is not how Trial occasion.” particular on that gun how he held but to fully permitted 4. Anderson was Opinion p. Any as an accident. shooting explain his version Anderson nor- how self-serving regarding demonstration to how have been irrelevant mally gun holds a would of evi- the admission at hand occurred. Because shooting relevance, dence, rests within respect largely court, and the requested discretion of the trial demonstra- tion no on the light would have shed manner this shoot- ing, find no in the trial court’s ruling. we abuse challenge,
Anderson’s second the trial court grounds erred in his trial motion on denying new mid- trial, trial merit. publicity, During also without involving appeared Reading articles this case paper. page highlighted Neither was on the front nor in any other manner. find The Honorable Calvin E. We Smith correctly 27, 1989, addressed this issue in his opinion January and, on opinion, the basis of that we affirm. *7 brings
The issue
the
which
matter to the court en
banc is the third and most
issue
troublesome
Anderson
aggravat
raises: Whether crimes of
murder and
merge
ed assault
sentencing purposes.
for
noteWe
initial
that, although
ly
Anderson did not raise his third issue at
level,
the trial court
of merger implicates
the issue
the
and, therefore,
legality
sentencing,
not
may
be waived.
56,
Campbell,
Pa.Super.
See Commonwealth v.
351
505
(1986),
denied,
602,
A.2d 262
alloc.
517 Pa.
The
common law doctrine of
in Pennsylvania was
significantly
by
Supreme
altered
Court
its recent
decisions of
Williams,
Commonwealth v. Leon
Williams was sentenced
assault,
term of one
one-half
ten
ed
a consecutive
a consecutive term one
attempted robbery,
for
years
restraint;
Williams’
to five
unlawful
years
and one-half
eight
twenty-five years.
thus was
aggregate sentence
denied and Williams
His
for reconsideration was
motion
A
of this
partially
to this Court.
appealed
remanded for resen-
of sentence and
judgment
vacated the
disposition
for its
tencing.
panel majority’s
The
basis
was
merged with the
unlawful restraint conviction
convictions
attempted robbery
assault and the
Leon
sentencing
purposes.
Williams,
A.2d 101
this result on
that the unlawful
panel grounded
their belief
*8
the restraint
restraint of the victim was coextensive with
and
rob-
by
aggravated
occasioned
assault
words,
majority
In other
bery
panel
the victim.
aggravated
attempted robbery
and
found that the
“
included’ the
restraint involved such
‘necessarily
unlawful
assault and the criminal
proof
aggravated
that
both the
acts
which the
attempt robbery required proof
of the
Leon
predicated.”
unlawful
restraint
conviction is
Williams,
The
conten-
panel
rejected the Commonwealth’s
majority
Common-
separate
tion that a
and
interest of the
distinct
restraint conviction.
by
wealth
vindicated
unlawful
however,
panel
The
Williams’ claim
majority,
rejected
also
merged
assault and
attempted robbery
that
sentencing
finding that each conviction vindicated
purposes,
of the
a different interest
Commonwealth.5
Court,
case reached the
that
Supreme
When the
Court
explaining
merger
its
test
it had
began
analysis by
announced
The Court
previously
Michael Williams.
prong
reiterated the first
of that test as follows:
other, therefore,
if
“necessarily
Crimes
involve” each
(1)
possible
one of two
scenarios occurs:
the crimes have
(i.e.,
offenses),
the same elements
lesser included
or
such
although
the facts of the case are
that
the elements
differ,
the crimes
the facts
one crimi-
which establish
charge
nal
also serve as the
for an additional
basis
bar,
An
charge.
example
criminal
of this is the case at
throwing
the facts of
beating
where
victim down and
her
the factual
for the
simultaneously establish
basis
crimes of
aggravated assault
unlawful restraint.
Williams,
(footnotes
Leon
second prong merger of the Michael test as Williams follows: merger
5. This Court’s Leon Williams utilized the an- test Pennsylvania Supreme nounced Court in Commonwealth v. Williams, Michael This test required be limited to situations where each conviction episode arises from the same criminal act or sarily and each offense "neces- other, proof required involves"the such that of the same acts is another, prove necessarily to however, each crime. Even if crimes involve one under Michael Williams the crimes do not if the separate substantially offenses vindicate different interests. Judge concurring dissenting opinion Wieand filed a in Leon Williams, agreeing majority’s finding with the attempted robbery convictions vindicated different interests. He parted majority’s finding with the that a conviction for unlawful restraint vindicated the same interests as convictions for attempted robbery, assault and merge so that unlawful restraint would sentencing purposes Judge with the other two offenses. judgment Wieand would have affirmed the of sentence. *9 of that the elements the crimes If it determined same, operative same facts or the the charged are that then, must under charged, the court crimes underlie the Williams, in analysis set out Michael determine the substantially different has the Commonwealth whether for two or more the defendant prosecuting interests in asked at really the court is to do What separate crimes. analysis is make determina- second of the stage the are at (1) of the Commonwealth interests tions: what (2) how the charged; and facts of in stake the offenses interests. case on the Commonwealth’s bear ****** words, two court has determine step In other at (how been injured has exactly how the Commonwealth on the court’s under- present) “evils" are based many interests standing the Commonwealth’s facts of the case. Id. original). in (emphasis it had only recently promulgated recognizing
While Leon analysis merger, Supreme and must Williams concluded analysis was flawed reached this conclusion on two majority abandoned. The (1) of the Commonwealth the enact- bases: the interests criminal are difficult to define any given ment statute merger any precise degree certainty; in establishing test Michael Williams guidance offers no had been many against how offenses the Commonwealth committed. Leon shortcomings, majority
In view of these offenses, that, included Williams except held lesser on doctrine of based whether defendant for more prosecuting has an interest in criminal abrogated. The majority than one crime was abolished and the crimes of therefore concluded unlawful do not because one of the restraint other; apart is not included crimes a lesser offense rejected argument from the that the convictions serve the Commonwealth, argu- same there exists no interest of *10 high The court in Leon merger. in of Williams ment favor of part prong of the first the Michael did not address if finding merger which leads to a of the test Williams Because necessarily each other. the Leon crimes involved lesser only held that included of- clearly Court Williams merge, only we can conclude that the “same fenses would test, i.e., although operative part facts” the crimes if the same factual basis elements differ (fact-based merger), has likewise supports the conviction been abandoned. Weakland,
In (1989), or nolo pleaded guilty Weakland contendere from the murder of Cecil Rash and arising various crimes station the decedent and his robbery gas by of a owned guilty to two counts of pleaded robbery wife. Weakland of criminal entered a of conspiracy, plea and one count nolo kidnapping, to one count of four counts of contendere assault, theft, of general one count and a motions, charge Following post-trial of homicide. denial of life on mur- imprisonment Weakland was sentenced to degree guilt hearing, der conviction—at a a three-judge degree of first guilty determined that Weakland was one-half to one fifty-three murder —and hundred seven years remaining charges, consecutively on the to run to the life sentence.
The Pennsylvania Supreme granted Court Common- in petition wealth’s for allocatur order to consider whether properly merger questions by Court treated the raised merger questions Weakland’s convictions. The involved merger of two of the four assault one charges, into another charge and the other kidnapping charge. into a Supreme analyzed the facts of the and mur- robbery der. merger question
The first dealt with two assaults inflict- ed Mrs. upon Rash—when Weakland’s brother knocked her ripped down and off telephone again the wall and then when shot Supreme Weakland her. The Court held that these assaults separate constituted acts sufficiently therefore, facts; erred this Court different supported convictions.6 the two merging whether was merger question Weakland The second charge merging erred this Court Wilson, station who gas Mr. a customer upon scene, with from the away drive Weakland forced to was this Court Mr. Wilson. While kidnapping charge Mr. perpetrated distinct assaults were found that two assault, i.e., gun shoving that the second Wilson, held we car, his face in order to commandeer into Mr. Wilson’s pur- sentencing conviction for kidnapping merged with *11 Court, the to the assault was According second poses. the prove relied to upon which the Commonwealth same act charge of to the elements of the necessary force establish conclusions, held Based on these this Court kidnapping. were, in that, kidnapping charges the because crime, sentencing purposes. for effect, merged one they Court, the Com Supreme the Pennsylvania Before Mr. Wilson there existed evidence of argued monwealth to act of in addition Weakland’s gunpoint, held at being face, element support in to the force shoving gun Wilson’s in its decision charge. recognizing While kidnapping Williams, merger the Supreme opined the Court Leon give if “to abused it were used doctrine would be in perpetrating any to unlimited violence ‘rights’ criminal threat as an violence or a of violence requiring crimes Thus, Weakland, at 1232. element.” A.2d the Supreme Court stated: our Superior Court discussion Com- agree
We [in that acts of multiple v. Leon when monwealth Williams ] requires another crime which violence accompany violence appeal, Supreme disposing raised on Court 6. In of the first issue failing presented consider this Court to evidence held that the Court erred hearing. guilt guilty plea This degree hearing, as at the as well separate merged because evidence these convictions (upon Supreme Rash supporting the initial assault of Mrs. which relied) presented guilty plea hearing. not at the was responsible Supreme Court concluded that Weakland was also perpetrated Mrs. under the accom- for the initial assault Rash plice theory. element, as an convictions of multi- or threat violence merge sentencing purposes not for ple violent acts should necessary supply to element of beyond that which the additional or threat for crime. violence high 1233. The court went on to differentiate its Id. at holding holding from the announced the com- Weakland case, panion Leon Williams: case, companion as in the case of In this Common- Williams, Pa. v. Leon wealth [521 it has (1989)] day, goal also decided this been our explain the doctrine of as it relates simplify In presented. the facts Leon we held that Williams facts are used to support the same convictions where elements, different the crimes do not having crimes sentencing purposes, unless same facts of lesser included offenses. That support convictions to the case holding apply present does not because support here is not whether the same facts problem convictions, facts in multiple but whether evidence addi- assault, i.e., establishing aggravated to those facts tional continued to threaten Mr. Wilson with a [Weakland] handgun, should have been used to the threat or satisfy It is kidnapping. force element of our view *12 satisfy additional facts should used to the force or be otherwise, kidnapping, threat element of for a violent permitted perpetrate multiple criminal would to crimes be for the harm he has suffering only partial liability while wrought. The concluded a majority summary
Id. Weakland with present merger of the test: reasons, person
For hold that if a foregoing the we violence, commits one act of criminal that act is the and he convicted of another only upon may basis which be crime, If, merge the act will into the other crime. howev- er, actor multiple beyond the commits criminal acts which is to the elements of the necessary establish bare crime, multiple additional then the of guilty actor will be crimes merge sentencing purposes. which do not that, the under facts Id.7 then stated Supreme charge of the the presented, because the charge inappropriate was kidnapping the and separate v/as gunpoint Mr. Wilson holding of act sufficient to was the from apart kidnapping for the necessary of threat the element supply conviction. Leon the of holdings described succinctly has
This Court and Weakland Williams as follows: one must merge, to offense be for offenses In order i.e. the elements of other, included offense” “lesser capable be identical to and offense must the lesser great- elements of the being subsumed within the wholly Williams, 2], Leon 28 n. 559 A.2d at [See er offense offense must for the lesser included predicate the factual predicate required to establish factual part also be the Weakland. ] [See greater the offense. Yates, 287, 282, 562 A.2d also, original). See Common-
908, (emphasis Burkhardt, wealth v. A.2d J.) (Leon Williams Flaherty, (1991) (concurring opinion by where elements of one crime are requires merger only crime).8 elements of another subsumed into contrary present argues in the case runs The dissent that the result 7. from wherein the of this citation Weakland first sentence Supreme only when act of criminal violence is the Court stated that one perpetrator can convicted another basis which the crime, Initially, merge we note that act will into the other crime. violence, multiple acts of criminal therefore Weakland involved single "holding” regarding effect of act dicta. the Moreover, in Weakland "holding” This out context. state- the dissent reads Supreme Court’s earlier ment be read in the context of the must high holding in There court its cited above. stated comments support follows: same facts are used Williams as "[W]here elements, having crimes do not for crimes different convictions support sentencing purposes, unless the same facts convic- 521 Pa. at tions of lesser included offenses." Weakland Thus, cited dissent must be at read in Weakland statement *13 require merger only predicated one where the two crimes on to act lesser included offenses. are Burkhardt, again attempted to alter the 8. In Justice McDermott once opinion only garnered merger Pennsylvania. test Because the for Thus, “lesser included test merger the offense” of must the crimes of applied aggravat- to murder and provisions The relevant of statutory ed assault. these two 2702(a)(1) crimes are follows: Section as defines to attempt assault as the cause “serious to bodily injury another, causing or such or injury intentionally, knowingly manifesting under circumstances recklessly extreme indif- the of ference to value human 18 Pa.C.S. life[.]” 2702(a)(1)(Purdon Supp.1991). attempt 1983 & Criminal § commit by reading attempt to defined statute together; person and homicide statute commits crimi- when, attempt nal to commit murder with specif- malice and ic intent to of person, cause death another he does any step act which constitutes a substantial toward commis- 901(a) of 2501(a) (Pur- sion that death. 18 Pa.C.S. § § 1983). don
A recent
of
this Court
potential
has discussed the
merger
herein,
of the two crimes at issue
under
Williams,
current
test
Leon
merger
of
Fuller,
(1990),
396 Pa.Super.
Fuller was originally charged three inchoate of attempt homicide, crimes to commit criminal conspiracy homicide, to commit criminal and solicitation to commit criminal trial, homicide. Immediately prior however, vote, however, change one other it did not the law and is not
precedent. doWe note that at least three the Justices would still follow the test established in Leon Williams Weakland. J., Opinion Nix, (Concurring by Flaherty, See Burkhardt and joined by CJ. Cappy, J.).
219 amend the infor- sought to indictment and Commonwealth mo- aggravated charge. assault This an to include mation Following trial close of the court. the granted by tion was case, granted the trial court Fuller’s Commonwealth’s the criminal homicide and some to the demurrers and Fuller was convicted inchoate offenses. related the Fuller filed a remaining charges. on then the sentenced appeal to this Court. direct Fuller was whether in the trial the raised
Among
issues
allowing
the amend-
error
prejudicial
committed
court
In
aggravated
the
to include
information
assault.
ment
as-
alleged
aggravated
the
response,
Commonwealth
and,
is a
offense of
murder
lesser included
sault
Fuller
therefore,
panel
proper. While
merger was
1) the
proper
amendment
because
held the
nevertheless
2)
Fuller was
arose
the same set of facts
crimes
out of
conduct,
panel
stated its
on
of his criminal
notice
placed
crimes.
the claimed
disagreement with
conclusion,
first noted the defini-
reaching
panel
In
its
of a
included offense:
tion
lesser
Williams,
To from ] \Leon 2., lesser is a A.2d at 28 included offenses n. [sic] “[a] subcompo- of which are a necessary crime elements anoth- of elements of component nent but not a sufficient words, crime, In included offense.” other greater er greater offense it must be commit impossible In- included committing lesser offense. without also of criminal at- stantly, it is obvious when the elements aggravated compared assault are tempt murder murder without a constitu- attempt a criminal can occur aggravated ent assault.
Fuller, 614, A.2d 884. The Ct. at at Pa.Superior Fuller as listed the of each crime then elements follows: used “attempt”
It is note that the word as crucial to does not the same aggravated carry statute “attempt” meaning general usage the more as defining respect aggravated inchoate crime. With assault, than “sub- “attempt” requires an more a mere commission, requires rather it step” stantial towards Russell, Commonwealth v. simple least a assault. See 534, 538-42, (1983), 460 A.2d 319-320 Alexander, quoting 193- After analyzing the ele- attempt ments of criminal as- sault, it is obvious is not a lesser included offense since every element of as- sault is not included in necessarily criminal attempt of *15 murder.
Fuller,
614-615,
396 Pa.Superior Ct. at
For
a contract killer to assassinate one’s
enemy constitutes a
step”
“substantial
towards commis
sion of a murder and could result
in a conviction for
However,
criminal attempt murder.
the same act is clear
ly insufficient to
an
support
aggravated assault convic
doubt,
tion. Without a
certain factual scenarios can
result in a conviction for both criminal attempt murder
and aggravated assault, but that does not require the
offenses to have a
included/greater
lesser
offense rela
Williams,
tionship.
563,
See
Fuller,
Pa.Superior
615,
396
Ct. at
221 act, i.e., gunshot case, single to the a present In the for Anderson’s convictions both neck, supports victim’s Thus, murder. attempted assault aggravated the one sentencing purposes only crimes will if Weakland, of the other. included offense lesser is a crime at For the reasons that 555 A.2d Pa. a is not lesser follow, aggravated assault find we murder. attempted offense included is not a lesser held that Fuller merg murder —and therefore offense included conduct “attempt” required apply did not er —because differs. also conclude that offenses We each of included offense not lesser murder, from those but for reasons different panel’s panel. Contrary to the Fuller the Fuller by offered holds this Court case law established position, step of the crime satis perpetration toward the significant attempt element of assault. Common fies the (1984); Carter, Pa.Super. wealth v. 115, 414 A.2d *16 Mayo, v. Commonwealth at assault” and (1979). Clearly, “attempted aggravated of a requirement the same substan tempted murder share step completed crime. tial toward what we panel did not address believe that Fuller We factor between truly distinguishing to be the consider an always murder is attempted crimes—the fact that two be, and aggravated assault can under inchoate crime and is, completed a crime. For this case facts follow, that, present- in find this situation reasons which we not a lesser aggravated assault is appeal, ed the instant murder. attempted included offense complicated analysis A included offense is lesser present aggravated the fact that an in the case to-wit, or ways, attempt cause can be committed two In 2702(a). bodily 18 Pa.C.S. injury. causes serious § short, en language of the assault section aggravated Thus, both an inchoate and crime. compasses completed attempted murder aggravated when both assault are charged, possible two scenarios arise: attempted murder charged together attempt with the form charged assault and together with a completed present assault. The case falls un- der the situation. latter
Initially, we note that had Appellant successfully victim, caused the death of the established case clearly law holds that merge assault would with the mur See, e.g., Musselman, Commonwealth v. der. n. 625-26 n. In situation, A-2d completed committed, or choate crimes were one of
which a lesser included offense of the other. Clearly, the actual infliction of death includes the actual infliction of serious bodily injury.
When murder is charged together with attempt aggravated assault, form of it appear would two should because both crimes are inchoate and, above, as requires noted each step substantial toward However, commission of the crime. we find that the mental state of the actor prevents merger. In Griffin, (1983), Griffin was convicted of robbery, murder, conspiracy, attempted terror threats, istic simple following robbery. bank Among the issues appeal raised on to this Court was whether the trial court erred in instructing the jury Commonwealth need only prove an intention to commit murder of any degree order to convict Griffin of attempt ed murder. Griffin requested a curative instruction to the specific effect that a intention to kill was for a necessary conviction of attempted murder. agreed, Griffin reasoning as follows:
The question squarely presented to us is whether some- one can attempt to commit murder of the second or third degree. We think not. A person commits attempt an when, with intent to crime, commit a specific he does any act which constitutes a step substantial toward the commission of that crime. 18 Pa.C.S.A. 901. Murder § of killing third occurs where degree second or of a criminal act. is unintentional result the victim mur- degree third to commit second or Thus, attempt an defendant intend- require proof to that a der seem would logi- killing is an unintentional perpetrate ed to —which intends to person only a impossible. While who cally degree murder if be of second felony may guilty a commit results, a who to inflict killing person only intends a if degree harm of murder a may guilty be third bodily results; persons does not those killing it follow killing if a did not of murder guilty attempted would murder attempted They guilty not be of occur. would only they not to commit they because did intend murder — to harm. felony bodily to a or commit intended commit 50-51, 456 at 177 Pa.Superior at A.2d Ct. Griffin, to in then cited (emphasis original). Griffin Scott, Law, where- on LaFave Handbook Criminal prove to an intent explain why necessary editors it is murder: charge attempted of to kill order to sustain the murder, of defined in terms crimes, such as are Some state causing plus result some mental particular acts that result. bring need an intent about which not be A, another, life Thus, B, if taken the of and C have each serious kill, A B with intent to do acting with intent an disregard of human C with a reckless bodily injury, and crime of life, guilty all three of murder because the are any one of these way murder is defined such a However, if do states the victims not mental will suffice. attempted A only guilty from their then injuries, die it is murder; charge on murder not intended to do sufficient to show that the defendant disregard or he acted in reckless bodily serious harm that this is because intent is needed Again, human life. requires attempt, the crime so that by the bring an intent to about that result described another). (i.e., crime of murder the death of A.2d 177 (citing at at Pa.Superior Ct. Griffin, Scott, Law, on LaFave Handbook Criminal § omitted)). (footnotes 428-29
From the discussion in Griffin, we conclude necessary that the intent to kill to sustain a conviction for attempted separate murder is and distinct from other any intent, and, therefore, cannot include any other type of intent. Attempted requires specific a kill, intent to an intent to result. particular cause Attempted murder include, therefore, cannot also an consequence, unintended i.e., an intent to inflict serious bodily injury. As stated above, killing an actual includes the actual infliction of However, bodily injury. serious dealing when with the attempt to commit murder or the attempt to commit an assault, “specific each crime is a intent” crime because the result specifically intended is either a complet ed completed aggravated murder or a Therefore, assault. when considering separate mental states needed to support a crimes, conviction for these two inchoate it be comes “specific evident that intent” elements of at tempted aggravated attempted assault and murder are dif ferent—-a specific intent to kill is not a specific intent to commit serious bodily injury. To conclude otherwise viti ates concept specific Thus, of “a intent.” under the Williams, current test Leon set forth attempted aggravated assault is not a lesser included offense of attempted murder because both crimes require different specific intent to bring about a specific result. An different intent to inflict serious bodily injury separate and distinct and, from an kill therefore, intent cannot wholly subsumed within the intent to kill element of murder. Given the distinct mental state elements of these crimes, aggravated assault is not a two lesser included offense of murder and merger of these two crimes is not appropriate. argues
The. dissent logic that such renders the intent necessary attempted aggravated assault and at tempted murder mutually questions exclusive. It then legality of convicting Appellant of both crimes. The answer to such a contention is that under the facts of the instant inchoate crimes.9 case, presented are not we bodily Appellant no caused serious doubt There can be Thus, present involves the case the victim. injury crime are an inchoate and a choate scenario wherein assault but completed charged; Appellant *19 bodily actual infliction serious the murder. not murder, necessary attempted a element of not injury is inflicting the can be committed without murder attempted degree of harm. slightest Fuller an illus- provides scenario
The above-mentioned illustrate, a suppose to Additionally, of this point. tration neighbor’s his house. in wait outside a window of man lay room, rifle, man a raises neighbor As the enters the “Die, neigh- neighbor, yells, and aims at the heart of moment, having heard the precise police, At that bor!” can fire the declaration, gun. the rifle before he grab man’s murder attempted crime of The man has committed the bodily inflicting injury. serious without support a In committing step necessary the substantial murder, Appellant completed of attempted conviction cannot, under different crime that commission a circumstances, attempted mur- wholly subsumed within be assault, is Thus, crime, not aggravated completed der. that merge sentencing a lesser included offense and does not purposes. additional, finding
An
independent basis for
is
a “lesser
merge
crimes do not
the fact
than the
higher-graded felony
cannot
a
included offense”
included. See Common
crime in which it is
supposedly
Gouse,
v.
120,127
3,
1129,
wealth
n.
Pa.Super.
(1981) (lesser
be less
n. 3
included offense must
degree”
than the
serious
terms of “classification
definition,
then,
first
greater offense).
degree felony
a
By
degree felony.
cannot
into a second
which we are
9. We limit our
to those facts with
discussion
therefore,
address,
presented. We
where a defen-
do not
a situation
attempt-
charged
is
both
dant
and convicted of
ed
assault.
Adams,
350 (en
Such result As stated Fuller: Further, it is analytically consistent the purposes jurisprudence punish criminal a criminal completes who an causes bodily serious injury more severely than a criminal who merely takes a “sub- step” completion stantial towards of a murder. See So- Helm, 3001, 3011, lem v. U.S. 103 S.Ct. 637, 651, (1983) (“It L.Ed.2d is generally recognized that are attempts less crimes.”); serious than completed Mode [1] Penal Code § 5.05. Fuller,
Commonwealth v.
396 Pa.Superior
615-616,
Ct. at
Because assault is neither lesser in cluded offense of murder nor degree a lesser felony, the trial court properly sentenced Anderson on both *20 charges.10
Judgment of sentence is affirmed.
WIEAND, J., files Dissenting a Opinion in which McEWEN, BECK, DEL join. SOLE and JJ.
WIEAND, Judge, dissenting.
The majority holds that where a defendant has been convicted of murder and upon based a single victim, of shooting act his separate sentences may imposed be for each crime because aggravat- ed assault is not lesser included of attempted offense I murder. am Because convinced that is, fact, in a lesser murder, included offense of attempted I would hold that such merge crimes must purposes for sentencing they when upon are based a single criminal act. I Accordingly, respectfully dissent. argues merger Anderson also that the current ap- be test cannot plied retroactively to his case. We find no merit to this contention. 476, Gray, See Commonwealth v. Pa. (general- 509 503 A.2d921 ly, applied retroactively all decisions are be to cases on direct appeal).
227 uti- currently which is offenses test by Supreme was established in lized this Commonwealth 556, Williams, 521 Pa. 559 v. A.2d Commonwealth Weakland, 521 Pa. 353, v. (1989) and Commonwealth 25 summarized (1989). This test has been A.2d 1228 555 following manner: in the Superior Court sentencing unless merge purposes not Crimes will of the other. included offense is a lesser one of the crimes Williams, 521 Pa. 25 556, 559 A.2d v. Commonwealth is offense a lesser one (1989). To determine whether other, must determine we whether included offense of lesser, A, are included elements violation Pemberth, v. Commonwealth B, greater. violation (1985). will 428, 235 Crimes 489 A.2d Pa.Super. 339 commits one act of criminal defendant where a upon may which he only act is the basis violence and that v. of the other crime. Commonwealth convicted Weakland, (1989). If he necessary multiple beyond acts commits criminal crime, then of the additional establish the bare elements Id. merge. the crimes will not 395, 402-403, Blassingale, v. Commonwealth 391 Pa.Super. v. (1990). See also: Commonwealth 430 Servich, (1992); 120, 134, A.2d Pa.Super. Yates, 282, 287-288, 562 A.2d case, undisputed appellant’s
In the instant it as- for both convictions violence, to of criminal single were based act sault neck. wit, shooting his De Booth the back Norma *21 nevertheless, holds, aggravated because majority of proof different attempted require murder assault intents, be lesser included aggravated assault cannot a crimes cannot and the two attempted of murder offense agree I am to purposes sentencing.1 for of unable this analysis. Specifically, majority as reasons follows: 1. 2702(a)(1),
Pursuant to 18 Pa.C.S. person guilty is § “[a] if he to attempts of assault cause serious bodily another, injury to or causes such injury intentionally, know- ingly recklessly or under circumstances ex- manifesting treme indifference to the value of human A person life.” is murder, if, guilty attempted specific with a kill intent to another, does a any he act which constitutes substantial step killing. toward commission an intentional See: 901(a); 18 Pa.C.S. Griffin, 310 Pa.Su- § 39, 50-52, per. 177-178 After careful offenses, study of the elements of these I am convinced that is a crime is invariably assault which included Thus, crime of attempted murder. when a defendant the. will, commits the crime of attempted murder he without proof, further commit also the crime of aggravated assault. If the intent to necessary attempted establish murder is a to specific intent kill and the necessary aggra- intent an is separate vated assault a intent to bodily cause serious crimes, as the injury, majority suggests, then the two fact, mutually How, then, are appellant exclusive. could convicted both According offenses? to majority’s rationale, appellant either intended to kill his victim toor killing bodily actual [A]n includes actual infliction of serious However, injury. dealing attempt when with the commit to murder assault, attempt or the "specific to commit an each crime is a specifically intent" crime because the result is intended completed completed aggravated either a or a murder assault. There- fore, considering separate when support mental to a states needed crimes, conviction "specific these two inchoate it becomes evident that the attempted aggravated intent" elements of at- and specific tempted specific murder are different —a intent to kill is not a bodily injury. intent to commit serious To viti- conclude otherwise concept Thus, specific ates merger of "a intent." under the current Williams,attempted aggravated test set forth in Leon is attempted not crimes lesser included offense of murder because both require specific bring intent about a different different specific An bodily injury result. intent to separate inflict serious and, therefore, and distinct from an wholly intent kill cannot be subsumed within the intent to kill element of murder. crimes, Given the distinct mental state aggravat- elements these two ed assault is not a lesser included offense of merger of appropriate. these crimes is not
Majority Opinion p. *22 accept I upon her. cannot bodily injury serious inflict rather, me, isIt clear to contention. logic majority’s of the intends, he of person, also to kill another that if one intends person.2 injury upon bodily to inflict serious necessity, correct, bodily then intent to cause serious view is my If in and be subsumed be included necessarily would injury of is element kill which an essential intent to specific serious The intent to cause attempted of murder. crime believe, necessary component of I is a bodily injury, kill has kill, specific intent to to and when a intent specific further that the is to establish unnecessary it proven, been bodily injury. serious intended inflict actor in murder, aggravated assault does not Unlike specific of a intent to cause require proof all cases Instead, may aggra- harm. one be convicted of proscribed of infliction of serious as a result a reckless vated assault prob- This leads to the second upon another. bodily injury If I taken to majority’s analysis. lem have with the which will, effect, conclusion, holding majority’s logical its into general crimes of intent lesser preclude in all instances in which serious intent crimes specific more For the same act. physical the crimes are based to kill specific apart if intent sets example, the element from the crime of murder same merging, analy- from does the precludes the two degree aggravat- murder and apply sis to the crimes of first me majority’s ed It that under the appears assault? assault will not be a lesser included holding, aggravated differing degree offense of first murder because Thus, if the intent for the two offenses. requirements can a defendant majority’s holding applied logically, first assault and sentenced for both separately results degree single physical time a act every result, however, killing the intentional of another. Such “[bfodily bodily injury is defined in the Crimes Code as Serious injury risk death or which causes which creates a substantial serious, impairment disfigurement, protracted permanent or loss or bodily organ.” any or § the function of member 18 Pa.C.S. added). (emphasis would be inconsistent with established law this Common- *23 wealth, majority recognizes. as even the aggravated
The law this Commonwealth is clear that
assault
is a lesser included
In
Com
offense
murder.
Musselman,
monwealth v.
245,
483
1,
Pa.
247 n.
396 A.2d
625,
(1979),
1
Supreme
625-626 n.
Court observed that
aggravated
the crimes of
assault
recklessly endanger
ing
person
another
are lesser included offenses of murder
required
proved
because
elements
on both
“[t]he
charges
all necessary, though
sufficient,
are
not
to establish
Supreme
the elements of murder.” The
Court further
Zimmerman,
v.
Commonwealth
112,
observed in
498 Pa.
119,
(1981),
92,
445 A.2d
96
that
is clear that
is
assault
“[i]t
grades
constituent element of all the
of homicide and does
not require
proof
of a fact
grades
that
various
homicide do not.” See also: Commonwealth ex rel Moszc
Ashe,
zynski
102, 105,
920,
(1941)
343 Pa.
21 A.2d
921
(“Two crimes may
be successive
in one crime and
steps
as,
merge,
therefore
e.g., ... assault and
is
battery merged
murder----”).
into
aggravated
Because
is
assault
a lesser
included
of murder,
therefore,
offense
it
seem to
would
follow logically
also a lesser
included offense of attempted murder. Cf. Commonwealth
v. Griffin,
supra,
Pa.Super.
53,
310
Prior decisions which have considered the issue
be-
now
fore this
have
Court
held that where convictions for aggra-
vated assault and attempted
murder are based
same criminal conduct
the two offenses must
Thus,
purposes of
Commonwealth v. Shur-
sentencing.3
Superior
3.
decision of a
Court in Commonwealth v.
Fuller,
Pa.Super.
396
precedent
Id., 247, 537 A.2d at See Pa.Super. at *24 Ford, 292-293, 281, 461 v. Pa.Super. 315 Commonwealth (where estab- 1281,1286-1287 (1983) same facts which A.2d to estab- murder were also used attempted of lished crime endangering another recklessly assault and aggravated lish merge attempted crimes with the latter two will person, v. Commonwealth sentencing); for of purposes murder 1133, 1143- Miranda, 441, 461-462, 442 A.2d Pa.Super. 296 merges assault with (1982)(conviction aggravated for 1144 additional facts murder where no attempted conviction for assault). Compare: aggravated to establish required are 170, 185, A.2d 425 Pifer, v. 284 Commonwealth merge not 757, assault did (aggravated 764-765 upon each offense was based attempted murder where defendant). of the separate criminal acts included offense assault is a lesser aggravated Because convictions attempted appellant’s and because of act, I single criminal upon these offenses were based for Therefore, imposed. of was of the discussion the sentence and, hence, Fuller, More- unnecessary was dictum. to the decision ascertains, over, correctly majority the Fuller as of this Court “attempt”, word as was when it concluded that the incorrect statute, meaning did not have same used attempt. reasoning defining crime of Because such as in was the Fuller Court’sbasis not a lesser included offense of that the inchoate concluding was murder, I must conclude be was and should overruled. such dictum erroneous would hold that appellant’s convictions merged purposes of sentencing. By permitting appellant to be sentenced for both murder and aggravated assault, the majori- ty, under the of case, circumstances has failed to follow holding the explicit Supreme Court in Common- Weakland, wealth v. supra, wherein the Court declared: person hold that commits one act criminal [W]e if violence, only and that act is the basis which he crime, may convicted another the act will If, however, into the other crime. the actor commits multiple criminal beyond acts that which is necessary to establish the bare elements of the crime, additional then the actor guilty will be of multiple crimes which do not merge for sentencing purposes. 364,
Id.,
single
double
prevents
jeopardy
from ex-
court
ceeding its legislative authorization by imposing multiple
”
punishments for the ‘same offense.’
v.
Commonwealth
Tarver,
320,
493
325,
569,
Pa.
(1981).
426 A.2d
572
See:
Ohio,
161,
Brown v.
432 U.S.
2221,
97 S.Ct.
The means of determining whether there single exists a offense for of purposes the prohibition against multiple punishment is well settled: “ ‘The applicable rule is that where the same or act
transaction constitutes a violation of two distinct statu- tory provisions, the test to be applied to determine
233 or one is whether only two offenses there are whether the other of a fact which requires proof provision each ” does not.’ 325, 426 A.2d at Tarver, 493 Pa. at v. Commonwealth States, 284 U.S. 299, Blockburger v. United 572, quoting (1932). 180, 182, 306 Under 304, 76 L.Ed. 52 S.Ct. another, test, necessarily proves crime proof if of one is forbidden. See Common- for crimes both punishment Ohio, 161, Tarver, v. 432 97 Brown U.S. supra; v. wealth (1975). 2221, L.Ed.2d 187 53 S.Ct. Houtz, 348, Pa. at 437 A.2d supra, v.
Commonwealth omitted). (footnote at 386-387 case, of instant to the facts applied test is When this single act immediately appellant’s apparent it becomes attempted murder. aggravated assault constituted both the same act. by precisely established offenses were Both in the of the shooting the victim back was the of That act appellant’s established the Commonwealth neck. Once murder, necessary to proof no other was of guilt him assault. convict also included greater and lesser invariably ‘As is true offense, requires proof beyond no the lesser offense ... greater---- required for conviction that which the “same” by offense is therefore definition greater offense any as lesser purposes jeopardy double in it.’ included Zimmerman, 119, supra, 498 Pa.
Commonwealth v.
Ohio,
168,
supra,
Brown v.
432 U.S. at
A.2d at
quoting
2226-2227,
Under the case, facts of the instant appellant has been sentenced twice for the same offense. Because in my judgment such a result is forbidden both the doctrine of merger and the guarantee against constitutional double I jeopardy, respectfully, but vigorously, dissent. I would reverse and remand for resentencing.5
McEWEN, DEL BECK, SOLE and JJ. join in this Dissenting Opinion. agree I majority appellant with the is not entitled to newa trial.