COMMONWEALTH of Pennsylvania, Appellee, v. Andre JONES, Appellant.
912 A.2d 815
Supreme Court of Pennsylvania.
Decided Dec. 28, 2006.
Reargument Denied Feb. 20, 2007.
Argued Oct. 18, 2005.
from the charges, and the awareness on the part of the families of the students demonstrate that Woods’ ability to work, as a counselor was impaired. Therefore, I respectfully dissent.
Justice EAKIN joins this concurring and dissenting opinion.
Dean M. Beer, Esq., Karl Baker, Esq., for Andre Jones.
Ronald Eisenberg, Office of the District Attorney of Philadelphia, for appellee.
BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.
OPINION
Justice CASTILLE.
Appellant Andre Jones appeals from the Superior Court‘s order affirming the trial court‘s judgment of sentence for one count of burglary,
On July 31, 2002, at approximately 10 p.m., Julia Wellons heard noises coming from the inside of her house as she sat on the front porch of her home in Philadelphia. When Wellons went inside, she discovered that her previously locked back door was open. As she investigated further, she found her second floor bedroom light was turned on and her wallet was lying on her bed with the money removed. Upon hearing noises on the third floor, she phoned the police and shouted up the stairs that she had done so. She then heard someone trying to break through her third floor bathroom window and she began to climb the stairs, when she saw appellant, her next-door neighbor, in the bathroom. Before the police came, appellant jumped out of the window onto a shed adjacent to the home and fled. Following a conversation with Wellons, the police went next-door and arrested appellant.
After a bench trial, appellant was found guilty of one count of burglary and one count of criminal trespass. On March 5, 2003, appellant was sentenced to ten to twenty years of imprisonment for burglary and two to ten years imprisonment for criminal trespass, the sentences to run consecutively.2 Appellant appealed to the Superior Court.
The Superior Court affirmed the trial court‘s judgment of sentence in an unpublished memorandum opinion. As to the issue of whether criminal trespass and burglary merge at sentencing, the panel held that criminal trespass is not a lesser included offense of burglary, since criminal trespass contains a scienter requirement not included within the elements of burglary. The panel began its analysis by citing Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994), for the proposition that sentences merge if the elements of the lesser crime are included within the elements of the greater crime, and the greater offense includes an additional element not included within the lesser crime.3 The
Appellant claims that criminal trespass should merge with burglary for sentencing purposes because every burglary also constitutes a criminal trespass. Appellant argues that his convictions should merge under the OAJC in Gatling, 570 Pa. 34, 807 A.2d 890, because they arose out of the same criminal act and the charge of criminal trespass is a lesser included offense of burglary. He also argues that his sentences merge under the test set forth in Commonwealth v. Comer, 552 Pa. 527, 716 A.2d 593 (1998), where this Court held that sentences should merge where one set of facts supports the elements of two offenses. Appellant acknowledges that it is reasonable for the Commonwealth to charge a defendant with both criminal trespass and burglary where the Commonwealth is uncertain it is able to prove a defendant‘s intent to commit a crime at entry, but asserts that there is no logical justification for subjecting a defendant to multiple and consecutive terms of imprisonment when the act of burglary is proven at trial.
The Commonwealth counters by arguing that merger is a question of legislative intent, and
In courts across the nation, analysis of lesser and greater included offenses typically falls into one of three categories. 5 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE 576 (2d ed.1999). First, the “statutory elements test” limits a court to comparing the elements of the crimes, without reference to how the crimes were committed in a particular case, to determine whether in committing one offense the defendant has also committed a lesser offense. Id. The primary criticism of this test is that it is too inflexible, frequently ignoring the true nature of criminal conduct by excluding a lesser included offense; but the test is praised for its consistency which promotes judicial efficiency. Id. at 578. Second, the “cognate-pleadings” approach does not require that all of the elements of a lesser included offense be subsumed within the higher offense, and instead instructs a court to assess the relationship between crimes by looking at
Nearly three decades ago, in Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978), this Court confronted an issue similar to the one before us today and utilized a merger analysis that most closely resembles a statutory elements approach. Carter did not involve sentencing merger, but instead a due process challenge where a defendant who was charged only with committing burglary was convicted for the uncharged crime of criminal trespass. With Justice Roberts (later Chief Justice) writing for the majority, this Court reasoned that criminal trespass is not a lesser included offense of burglary because the statutory definition of criminal trespass has a scienter requirement absent from the definition of the more severe offense.
[T]hus, one defending against a burglary charge would have no reason to establish that (albeit falsely) he believed his presence in a building or occupied structure was privileged or licensed. Yet evidence of such a belief could provide a basis for an acquittal of a charge of criminal trespass.
Id. at 661. Given the deficiency in notice, the Carter Court held, it was a violation of due process to convict the defendant of criminal trespass when he was not indicted on that charge. Id.
Since Carter, however, our precedent in the related but distinct area of sentencing merger has adopted a more flexible and realistic approach, which renders untenable, for merger purposes, Carter‘s view that burglary and criminal trespass are not greater and lesser included offenses. More than a decade after Carter, this Court addressed in Anderson whether, for merger purposes, aggravated assault is a lesser included offense of attempted murder. We attempted to harmonize prior case law by first holding that the same facts may be used to support multiple convictions and separate sentences for each conviction, except where the case involves crimes that are greater and lesser included offenses. Anderson, 650 A.2d at 22.4 This
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.
Id. at 23 (quoting Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569, 572 (1981) for its quotation of Blockburger).5 We then set forth the test for determining greater and lesser included offenses as:
[W]hether the elements of the lesser crime are all included within the elements of the greater crime, and the greater offense includes at least one additional element which is different, in which case the sentences merge, or whether both crimes require proof of at least one element which the other does not, in which case the sentences do not merge.
Id. at 24. Applying this test to the case, the Anderson Court found that all of the elements of aggravated assault were subsumed under the attempted murder statute. The Court reached this conclusion by noting that “any merger analysis must proceed on the basis of [the] facts” of a case because some portions of a statute may be relevant to the analysis, while others will be immaterial. Id. at 24 n. 3 (discussing two different portions of aggravated assault statute; noting that defendant may be prosecuted for aggravated assault if he either attempts to cause or causes serious bodily injury to another. See
Then, in Comer, 552 Pa. 527, 716 A.2d 593, this Court considered whether imposition of multiple sentences for convictions for involuntary manslaughter and homicide by vehicle violates the double jeopardy clauses of the Pennsylvania Constitution7 and the United States Constitution.8 The Superior Court in Comer held that homicide by vehicle is not a lesser
included offense of involuntary manslaughter because homicide by vehicle requires a violation of the Motor Vehicle Code,
Significantly, we expressly acknowledged in Commonwealth v. Collins, 564 Pa. 144, 764 A.2d 1056, 1059 (2001) that homicide by vehicle contained a statutory element that the greater offense, involuntary manslaughter, did not, but we reiterated the importance of looking at the elements of the crimes as they are actually charged when determining whether convictions merge for sentencing. We did not abandon, however, our practice of considering the statutory elements of the crimes when we held that the offenses of homicide by
vehicle and homicide by vehicle while driving under the influence of alcohol (homicide by vehicle DUI) do not merge for sentencing purposes. Id.11 The rationale underlying this decision was premised on the fact that the doctrine of merger is a rule of statutory construction mandating an inquiry, if discernable in the construction of the statutes, regarding whether the Legislature intended the two offenses to merge for sentencing. Id. at 1057. In Collins, we found legislative intent readily ascertainable in the statutory definitions of the two offenses at issue, as the General Assembly constructed homicide by vehicle as requiring a non-DUI Vehicle Code violation and homicide by vehicle DUI as requiring a DUI conviction. Id. at 1059. The Collins Court further recognized that Comer permitted an analysis of “the elements as charged in the circumstances of a case,” but that “it does not permit [this Court] to view the circumstances so broadly that we redefine the elements of the crime.” Id.
Gatling was decided a year after Collins, but did not result in a majority opinion.
each have an element not included in the other but the same narrow fact satisfies both of the different elements, the lesser crime merges into the greater-inclusive offense for sentencing.” Id. at 899 n. 9 (comparing holding of Comer with holding in Collins). Although the parties in the case sub judice disagree over whether this statement articulates prevailing law, none of the members of the Gatling Court who were not with the OAJC took issue with this particular point. Rather, the primary point of dispute related to a subject not at issue in this case, namely, the OAJC‘s articulation of a “break-in-the-chain” test to determine whether a series of events constitutes a single criminal act or multiple ones. Id. at 900.15 Moreover, the proposition so stated in Gatling is squarely supported by Comer and Collins.
With this background in mind, we turn to the relevant statutes. Burglary is defined as follows:
Saylor authored a concurring opinion, observing, among other things, that Pennsylvania law would benefit from clarification regarding the exact role that evidence plays in our sentencing merger jurisprudence and suggesting a totality of the circumstances approach to determining the number of punishments to be imposed for a criminal episode. Justice Cappy, now Chief Justice, filed a dissenting opinion joined by Justice Nigro, rejecting the notion that “there was a break in the action sufficient to support a finding that two different sets of facts underlie” the convictions in the case. Id. at 903. Justice Eakin did not participate in the consideration or decision of the case.
A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
A person commits an offense if, knowing that he is not licensed or privileged to do so, he:
(i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or (ii) breaks into any building or occupied structure or separately secured or occupied portion thereof.
The impediment to merger here, as identified in the Carter approach to charging and due process and the Anderson approach to sentencing merger, consists in the fact that the two primary elements of criminal trespass—(1) knowledge of lack of privilege (2) to enter a building—are not elements of burglary. Criminal trespass requires a defendant‘s awareness of lack of privilege,
make clear the crimes must be deemed to merge.
Appellant was charged with entering the home of his next-door neighbor, without permission, and taking $400 from inside. Although appellant made an argument below that he believed he had permission to enter, the trial court, sitting as factfinder, obviously rejected this contention when it convicted him of both burglary and criminal trespass. Any individual who covertly enters another person‘s home, through a locked back door as appellant did, and then steals valuables obviously is aware that his entry into the home is neither licensed nor privileged. Thus, the totality of circumstances here, including the pleadings and proof at trial, established that appellant was aware of his lack of privilege to enter when he committed both burglary and criminal trespass.
We find further support for our finding of merger in Justice Pomeroy‘s dissenting opinion in Carter.17 Although that dissent is not binding, and Carter remains valid precedent for the due process issue there decided, it is significant that the dissent anticipated the more practical, hybrid approach that has emerged in Pennsylvania sentencing merger law, and it did so in a case involving burglary and criminal trespass,
exclusive provisions that would enable us to discern any legislative intent. Moreover, Collins did not implicate double jeopardy concerns, which would account for its narrow statutory analysis.
burglary statute requires the Commonwealth to show volitional entry (with the intent to commit a crime) into a building and allows a defendant‘s license or privilege to enter a building to operate as an affirmative defense to the crime. Justice Pomeroy viewed criminal trespass as a lesser included offense of burglary because the burden of production on the Commonwealth is functionally identical for each crime, as the Commonwealth must essentially prove entry without legal justification in each case. Carter, 393 A.2d at 666. Justice Pomeroy opined that, although the burglary statute suggests that privilege is an affirmative defense to the crime, as opposed to a mandatory element that the Commonwealth must prove to establish criminal trespass, the very availability of the defense necessarily requires any competent prosecutor to establish knowledge of lack of privilege in his case in chief to thwart a potential defense argument or evidence respecting license or privilege. Id. Justice Pomeroy‘s exploration of the practicalities and the interplay of these particular crimes is persuasive, particularly considering how merger analysis has evolved in this Court.
We stress that our reliance on the Carter dissent does not call into question the validity of the holding of the Carter majority. Carter implicated due process, a distinct concern from the present case. This Court has evaluated whether crimes are lesser and greater included offenses in cases concerning sentencing merger, double jeopardy, and due process, but the concerns arising under due process are different from those attending the former two types of cases. The fact that this Court employs the same analysis in double jeopardy and sentencing merger cases is a function of the Double Jeopardy Clause‘s prohibition that no person “shall be subject for the same offence to be twice put in jeopardy of life or limb,” which protects against both successive punishments and successive prosecutions for the same offense. United States v. Dixon, 509 U.S. 688, 695-96, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 (1993). The due process concern in Carter, in contrast, had to do with notice and fairness, i.e., whether a defendant could be convicted of a charge that he was not indicted on and,
therefore, had no notice to defend. Carter, 393 A.2d at 661-62. Where due process and notice are at issue, it is prudent to primarily focus the analysis on the statutory elements of a crime to determine whether crimes are lesser and greater included offenses because due process protects “an accused against any unfair advantage.” Commonwealth v. Bryant, 367 Pa. 135, 79 A.2d 193, 198 (1951). When a defendant may be convicted on a charge absent from the indictment, concerns of fundamental fairness dictate that analysis of potential greater and lesser included offenses proceed in a more narrow fashion than when sentencing merger is at issue.18
ute, likewise, punishes unlicensed entry into a building to commit a crime therein where the defendant has gained access through both mere entry into a building and entry into a “separately secured” portion of a building, which implies a breaking.
In sum, appellant was charged on facts that satisfy both the elements of criminal trespass and of burglary. Appellant was accused in the Commonwealth‘s complaint of entering his neighbor‘s home without her consent to steal a substantial quantity of cash. These facts, as charged in the pleadings and made out at trial, were sufficient to convict appellant of both burglary and the lesser offense of criminal trespass. Accordingly, the crimes merge for sentencing.
For the foregoing reasons, we reverse the order of the Superior Court in part,
Chief Justice CAPPY and Justice BAER join the opinion.
Former Justice NIGRO did not participate in the decision of this case.
Justice SAYLOR files a concurring opinion.
Justice NEWMAN files a dissenting opinion in which Justice EAKIN joins.
Justice SAYLOR, concurring.
I have no objection to the majority‘s approach to sentencing merger in the absence of a specific expression of legislative intent; indeed, consistent with such approach, I believe that it is sensible to treat criminal trespass as a lesser-included offense of burglary. However, I agree with Madame Justice Newman that the Legislature has now evinced an intent in Section 9765 of the Judicial Code,
Justice NEWMAN, dissenting.
We are asked to decide whether a trial court erred in sentencing Appellant to consecutive terms for burglary and criminal trespass after finding that the offenses did not merge for sentencing purposes.1 For the reasons that follow, I
conclude that the offenses should not merge and that the sentence as imposed by the trial court was appropriate. As such, I respectfully dissent from the Majority Opinion.
The Majority is both correct and fair when it recognizes that the impediment to merger of these offenses is that an element of criminal trespass, knowledge of lack of privilege to enter a building, is not an element of burglary.2 The Majority holds that the findings of fact do not establish a sufficient basis to sentence Appellant for both burglary and the lesser-included offense of criminal trespass. I find that result to be contrary to our precedent and the intent of the General Assembly.
In Commonwealth v. Gatling, 570 Pa. 34, 807 A.2d 890 (2002) (plurality), a plurality of the Court agreed as follows:
To the extent that our merger jurisprudence is confusing, we now definitively state, for bench and bar, the standard for determining when convictions should merge for the purposes of sentencing.
The preliminary consideration is whether the facts on which both offenses are charged constitute one solitary criminal act.
If the offenses stem from two different criminal acts, merger analysis is not required. If, however, the event constitutes a single criminal act, a court must
then determine whether or not the two convictions should merge. In order for two convictions to merge:
(1) the crimes must be greater and lesser-included offenses; and
(2) the crimes charged must be based on the same facts.
If the crimes are greater and lesser-included offenses and are based on the same facts, the court should merge the convictions for sentencing; if either prong is not met, however, merger is inappropriate.
Gatling, 807 A.2d at 899 (spacing modified) (footnote omitted). We further specified that:
One crime is a lesser-included offense of another crime if, while considering the underlying factual circumstances, the elements constituting the lesser crime as charged are all included within the elements of the greater crime, and the greater offense includes at least one additional element that is not a requisite for committing the lesser crime.
Gatling, 807 A.2d at 899 n. 9.
In the instant case, Gatling‘s preliminary consideration for merger, that the facts on which both offenses are charged constitute one solitary criminal act, is met. Accordingly, we then look to the following two criteria: whether the crimes are great and lesser-included offenses and whether the crimes charged are based on the same facts. Here, the second criterion is met, because the crimes charged are based on the same facts relating to the entry of Appellant into the home of Wellons. However, the case sub judice fails to meet the first criterion, that the crimes must be greater and lesser-included offenses. Section 9765 of the Sentencing Code provides:
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.
The Majority wishes to place a greater emphasis on the underlying factual circumstances, which purport to establish that the criminal trespass in this particular case is a lesser-included offense of the burglary. This analysis would be consistent with the observation by the Gatling plurality that “in a situation where the crimes, as statutorily defined, each have an element not included in the other but the same narrow fact satisfies both of the different elements, the lesser crime merges into the greater-inclusive offense for sentencing.” Gatling, 807 A.2d at 899 n. 9. However, the Majority would have us ignore the statutory requirement for merger, which mandates that all of the statutory elements of one
offense coincide with the statutory elements of the other offense. See
Burglary is defined as follows:
(a) Offense defined.—A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
Criminal trespass is defined as follows:
(a) Buildings and occupied structures.—
(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he: (i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or
(ii) breaks into any building or occupied structure or separately secured or occupied portion thereof.
As the trial court and Superior Court correctly determined, the elements of these two crimes differ, and sentencing thus cannot be merged pursuant to our jurisprudence and the legislative intent as evidenced by
To be convicted of criminal trespass, the person must know that he is not licensed or privileged to enter, whereas a
conviction for burglary has no such knowledge requirement. Therefore, the crime of criminal trespass contains another element that the crime of burglary lacks and cannot be a lesser-included offense of burglary. Burglary requires entry with the intent to commit a crime within, a requirement that criminal trespass lacks. Thus, not every burglary is a criminal trespass, and vice versa.
Accordingly, the lesser crime of criminal trespass does not have all of the elements of the greater crime of burglary, and the sentences should not merge. As such, I respectfully dissent from the Majority Opinion.
Justice EAKIN joins this dissenting opinion.
Notes
Section 3503(a)(1) of the Crimes Code defines criminal trespass in relevant part as follows:
A person commits an offense if, knowing he is not licensed or privileged to do so, he: (i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof; or (ii) breaks into any building or occupied structure or separate secure or occupied portion thereof.
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.Id. The Commonwealth characterizes this statute as reflecting both the General Assembly‘s specific intent concerning when crimes should merge for sentencing and a codification of existing case law. See Commonwealth‘s Brief at 5-8. While this characterization may be correct, this Court‘s merger jurisprudence is not rendered irrelevant by Section 9765, for it is silent as to whether the facts of a case are pertinent to merger analysis, see discussion infra, and our jurisprudence in these cases implicate constitutional double jeopardy concerns.
Any person who unintentionally causes the death of another person as the result of a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3802 is guilty of a felony of the second degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.
Prior to Gatling, in Commonwealth v. Belsar, 544 Pa. 346, 676 A.2d 632 (1996), this Court had noted the importance of examining the facts of a case to determine whether sentences should be imposed for each criminal act perpetrated. If a criminal act has been committed, terminated, and then repeated, at least two crimes have been committed and separate sentences should be imposed for each crime to ensure that criminals are not permitted to “brutalize their victims with impunity.” Id. at 634.
(4) Conviction of Included Offense Permitted. A defendant may be convicted of an offense included in an offense charged in the indictment [or the information]. An offense is so included when: (a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or (b) it consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or (c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.M.P.C. § 1.07(4); Carter, 393 A.2d at 667 (Pomeroy, J., dissenting). Justice Pomeroy added that five Justices “were prepared to be guided by Section 1.07(4)” in Commonwealth v. Polimeni, 474 Pa. 430, 378 A.2d 1189 (1977) (OAJC) and Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (plurality). Under Section 1.07(4)(c), Justice Pomeroy noted, criminal trespass would constitute a lesser included offense of burglary. Carter, 393 A.2d at 667.