*4 CERCONE, JJ. WIEAND, Before OLSZEWSKI CERCONE, Judge: appeal
This is an judgment from imposed sentence convictions of robbery, aggravated assault and possessing instruments of crime. 17, 1983,
On March appellant, Grover Taylor, gained apartment admittance to the of Laura Antonowicz, Jean he acquainted, whom was under the pretext that he go would to the store for her on an errand. As Ms. Antonowicz turned toward her get bedroom to money for appellant, he approached her from the rear pulled an electrical cord around her neck. The passed victim out and fell to the floor.
Appellant then got victim, on top locked her head knees, between his and stabbed and cut her repeatedly with a knife. When the knife broke in attack, the course of his appellant continued his onslaught first pair with a of scis- sors, and with an finally pick. ice Ms. Antonowicz, who inwas and out of attack, consciousness during this suffered serious disfiguring face, lacerations of neck, chest and wrist, as multiple well as puncture-type wounds to her chest, breasts, abdomen, genital thighs. area and She was taken to the hospital after being found by a friend.
When the victim’s boyfriend, Carbo, Jr., Louis went to thе apartment later day, he found icepick and electrical cord in the bedroom. The victim’s jewelry box was missing and a camera which belonged to Carbo had been taken and was later returned to him by the man with whom resided. Additionally, the victim later discovered that the gold chains that she had wearing been at the time of the attack had also been taken.
Appellant, whom the victim assailant, identified as her was arrested days five after the attack in the home of his father where he was found crouching pile in a clothing a closet. When he told that he was under arrest and the charges were being explained, appellant out, blurted “Yeah, it, I did I’mbut not the one only going that’s to go jail for it.”
413 was appellant in of April by jury1 a trial After assault, possessing aggravated robbery, of convicted denied, and motions were of crime. Post-trial instruments on the twenty years to ten to sentenced was appellant count, on the years to ten five charge on years one-half to five two and charge and to be All sentences were of crime. instruments possessing consecutively. served state- inculpatory is that his argument initial
Appellant’s sup- should havе been his arrest police to after ment2 six arraigned not within that he was ground on pressed v. Commonwealth Davenport, In arrest. of his hours Supreme (1977), Pennsylvania 370 A.2d Pa. is accused not rule that when an promulgated Court arrest, ob- statements any six hours of arraigned within generally are arraignment before after arrest but tained Camden, in was arrested Appellant at trial. not admissible clearing 1983. After a.m. on March at 11:50 Jersey New authorities, Philadelphia to with Camden his transfer him Detective to South transported officers arresting thereafter, Sometime Philadelphia p.m. at 5:05 Division arrest, of appellant’s notified Study Youth Center was should be that informed the officers and later The prior record. significant due to his custody kept Study to the Youth ultimately transferred appellant was from this transfer is not clear Center, the time of although not ar- appellant was agree The parties the record. the record although hours of his arrest within six raigned arraignment. to the exact time unclear as within six arraigned not Although appellant was of the law since Dav arrest, development hours not the only enport this is decided demonstrates was Lewis, In considered. factor to be en court, A.2d 1310 this Pa.Superior Ct. he were committed but Appellant when these crimes was a minor 1. as an adult. certified to be tried it, go jail ‘Yeah, going only that’s not the one I did but I'm 2. it.” banc, coercion, held that police any absent out” by “blurt an accused shall despite be admissible at trial a delay of more *6 than six hours between the time of arrest and arraignment where the out” is unrelated illegal “blurt to the detention. Although he was detained for more than six hours before arraignment, his it is undisputed that uttered an inculpatory remark questioning provocation without or soon aftеr his arrest. therefore find We that the illegality of the Lewis, detention was unrelated to the “blurt out.” As in appellant’s remarks were not induced by police or inquiry action; rather, other official the statement was made as a and voluntary spontaneous act free will. We therefore affirm the denial of the suppression motion.
Appellant’s
argument
next
is that
the trial court
in
erred
admitting into evidence the
puncture-
victim’s bloodied and
jeans,
marked
because this evidence was inflammatory and
A
prejudicial.
decision as to the admissibility of demonstra-
tive evidence suсh as this is a matter within the discretion
of the trial
an
judge,
only
abuse of that discretion will
Frederick,
reversible error. Commonwealth v.
constitute
Pa.Superior
Ct.
We
with the Commonweаlth’s
assertion that
the victim’s jeans were admissible as an indication of the
brutality of the attack in order to establish the elements of
McClain,
Commonwealth v.
aggravated
In
assault.
Pa.Superior
Ct.
(1984) this crime and nature of the establishing to aid admissible intent of the defendant. аnd the testimony the victim’s argues Appellant the nature adequate prove records medical however, wounds; location McClain, supra, at 472 A.2d at Ct. reasoning that trial court’s approved court this to the convey would “better evidence allegedly prejudicial of an the clinical comments received than injuries jury Room doctor.” Emergency reasons, probative conclude that we foregoing
For the outweighed by the was not jeans the victim’s value of effect of their admission. possible prejudicial *7 was insuffi argument is that there third Appellant’s This issue robbery thе conviction. support to cient evidence as it was raised for review properly preserved not been has Com In in fashion. “boilerplate” motions post-verdict in Holmes, 256, 461 A.2d v. monwealth Ct. motion must post-verdict held that a this court to was insufficient respect in the evidence specify what motion stated Appellant’s post-verdict support the verdict. in the denying the court erred in terms that conclusory and for a directed verdict and the motion defense demurrer elements of to the prove failed that the Commonwealth did not appellant The a reasonable doubt. robbery beyond or a demurrer granted been he should have specify why crime were not verdict, elements of the or which directed Holmes, supra Therefore, in accordance established. to be waived.3 we find this issue comment prosecutor’s contends that the Appellant also failure to appellant’s closing arguments regarding during miscon- prosecutorial witness constituted produce a certain appel- if, preserved properly arguendo, had been Even this issue 3. review, light in having of the evidence the considered all late after winner, agree we verdict Commonwealth as the most favorable to the than sufficient to allow that the facts were more with the trial court guilty jury that was to conclude beyond doubt. a reasonable warranting a new trial. While comments which cause duct inferences from the of a jury draw adverse absence improper, are often see Commonwealth v. e.g., witness (1981), Brown, clearly 492 Pa. 424 A.2d the record statement made direct prosecutor’s indicates that was comments of counsel. response closing appellant’s to the stated; Appellant’s counsel Jimmy? Why
Is Mr. Lester? Where is didn’t he Jimmy Tsay Jimmy. My in here and am name is James come He Taylor gave Lester. lived with me. me the Grover I gave camera. it to Carbo.’ closing argument, prosecutor responded, her During is He Jimmy? “Where’s James Lester? Where was supposed The living with Grover. Commonwealth him put on?”
This issue addressed Su Pennsylvania 506 Pa. preme Floyd, Court held a prosecutor’s A.2d 365 There the Court to the during remarks summation which drew attention individual, not cause testimony by a certain were absence remarks defense inspired by for reversal when the initially counsel’s own statement which drew attention to implied jury of that that the testimony, the absence should an inference to the defendant. We draw favorable issue, dispositive find case is of this Floyd therefore, argument. reject appellant’s sentencing pur- is that for
Appellant’s
argument
fifth
*8
aggravated
his
of
assault should have
poses,
conviction
Appellant
conviction.4
merged
robbery
been
years
of ten to
on the
prison
twenty
sentenced to
terms
aggravated
ten
on the
years
and five to
robbery5 conviction
modify
to
sentence was not filed.
4. The record indicates that a motion
However,
merger
illegal sentence based on thе
of the
a claim of
Adams,
underlying
cannot be waived. Commonwealth v.
convictions
506,
Pa.Superior Ct.
A.2d 1264
Robbery
§
5. 18 Pa.C.S.A.
3701.
(a) Offense defined.—
if,
committing
(1)
person
guilty
in the course of
a
A
is
theft, he:
conviction,
consecutively. Appellant
assault6
to be served
argues
merged,
that
these sentences
should have been
from fif-
thereby reducing
sentences
these crimes
thirty years
twenty years.
teen to
to ten to
Williams,
Commonwealth v.
In
344 Pa.Superior
Ct.
an en banc
(1985),
panel
of this court reconsid-
common
merger.
ered the
law doctrine of
The court stated
occur,
to determine whether
should
a
merger
court
determine
separate
statutory
must
first
whether
of-
act,
fenses
of the
arose out
same criminal
transaction or
episode. When courts decide under
the merger doctrine
another,
“necessarily
two crimes
involve” one
it does
not
that all
always mean
the elements of one crime are
in
included
the other.
It means that on the facts of the case
two crimes
so
intimately
up
bound
the same
matter,
wrongful
practical
act that as a
of one
proof
crime
other,
proves the
necessarily
they
so that
must be treated
Williams,
same offense.7 Commonwealth v.
supra,
as
Ct. at
If the criminal
act,
cоnduct arose out of a single criminal
then the court must determine whether
the statutes defin-
ing
charged
the crimes
directed
the
substantially
id.,
Williams,
evil. Commonwealth v.
same harm or
344
127,
Pa.Superior
Therefore,
Ct. at
The test
merger,
above,
for
as stated
“flexible,
is a
determining
fact-based tool for
how many
against
offenses
the Commonwealth
have
been
actually
committed
...
question
merger
will often turn on an appraisal of
[T]he
precise
Commonwealth v.
facts
case.”
Williams,
supra
Pa.Super.
344
at
As
out in
a
can be carried
out by the infliction of
injury, but
it can also
serious
be
accomplished by mere threats of force or simple assault.
brutality
The
and heinous nature
appellant’s
violent
goes beyond
degree
attack
Legisla-
conceived of
(1985);
Maddox,
Commonwealth v.
Ct.
A.2d
sentencing merger
The doctrine of
is broader and more flexible
jeopardy protection against multiple
than the
punishments
double
multiplicity
the "same offense.” The doctrine acts to limit
is,
effect,
act,
practical
single
sentences for what
criminal
even
charged
when the elements of the various crimes
do not reveal that
any
necessarily
any
of those crimes is
included in
other. Common-
Williams,
supra
Pa.Super.
wealth v.
at
The fact that a defendant has visited one injury upon the
person of another does not insulate him from further
if he
liability
chooses to continue his assaultive behavior
in doing
so commits additional crimes.
Williams,
Commonwealth v.
supra,
Pa.Superior
344
Ct. at
130,
We also consider whether the statutes defining the crimes charged were directed to the substantially same harm or evil.
In determining many how different “evils” are present in given act, a criminal the sentencing court should devote close attention to the language Legislature the has used and the scheme it has in followed in defining offenses the Crimes penal Code other statutes. The court must also аpproach the question with a dose heavy of common sense. Williams,
Commonwealth v.
supra
Pa.Super.
at
Ct. at 504 A.2d at that the harm against which aggra- Legislature protect by enacting intended to against part statute is the same harm vated protect, protec- to i.e. robbery statute is intended which However, infliction bodily we also injury. against tion specifically statute more intends recognize robbery that the or to threaten violence resort violent to those who punish their goal theft. accomplish order means Adams, attempt- shot while appellant In bartender bar; these facts indicate that true to rob a ing statute, inflicted language “in upon another, while the course of injury bodily serious In See, 3701(a)(1). committing a theft.” Pa.C.S.A. § however, the facts show that the assault judice, case sub *11 attempt in to the victim since not committed an rob was to causing the victim her lose strangled had appellant once robbery. to the He consciousness, complete he was free attack and prolonged separate a gruesome and continued This set of facts indicates that robbery. from the distinct As separate criminal acts. we the two crimes were two supra, v. Wojciechowski, in it is Commonwealth expressed robber, choking into a after his victim unthinkable that of unconsciousness, maim her fear fur- could then without punishment. ther aggravated find the assault statute and
We also that Com different interests of the protect the statute has Legislature the fact by as evidenced monwealth Involving Dan under “Offenses separately them classified B), (Title 18, II, “Offenses Part art. ger to the Person” (id. v. Commonwealth C). art. Against Property” Williams, A.2d at 51. at 496 supra Pa.Super. mechanically applied. to merger is not be
The rule of of the case particular facts scrutiny of After careful a severe court, decline to subsume we presently before making robbery. By minor into relatively Legisla robbery, of of harm an element bodily infliction courts prevent sentencing to intended could have ture not pro- those who commit vicious directly punishing from longed assaults.8 claims of ineffectivеness asserts three
Finally, appellant a claim of ineffective- counsel. When confronted with counsel, first determine whether the issue ness of we must arguable is of charge of ineffectiveness underlying the arguable underlying If the issue is found be merit. merit, to a determination of whether the inquiry our shifts de- counsel had some reasonable basis course chosen signed to effectuate his client’s interests. Commonwealth (1980). Furthermore, Evans, 85, 413 489 Pa. A.2d v. performance by must deficient any an show outcome of the prejudice caused and affected the counsel 668, 104 466 U.S. S.Ct. Washington, trial. Strickland v. (1984); Buehl, 80 L.Ed.2d Pa. first is that trial counsel was ineffective
Appellant’s
claim
regarding
instructions
failing
object
jury
to the court’s
The
possessing
jury
instruments of crime.
charge
knife,
or not the
instructed to determine whether
was
alleged
ice
to have been instruments of
pick
scissors and
such, in light
crime were in fact
of the definition of instru-
an
provided
jury
ments of crime. The court then
907(c).9 Ap-
accurate definition
to 18 Pa.C.S.A.
pursuant
§
since the court
pellant argues
charge
improper
that the
opined
it was
assault and
8. For other cases which
*12
merge
sentencing purposes,
not
for
see Common-
should
523,
Adаms, supra,
Pa.Superior
wealth v.
(Wieand,
Ct. at
should have law not instruments of crime. does not pick Appellant ice the court’s mention of a knife as a challenge possible instrument of crime.
The has crite Legislature established two alternative determining object an is an instrument of ria whether must either one is used object regularly crime: be which one physically criminals or it must be which altered objective. a fashion as to demonstrate a criminal such Rodriquez, v. Commonwealth Pa.Superior Ct. 462 (1983). A A.2d 1310 review of case law leads us to agree pick pair may that an ice and a scissоrs not fit an of crime. statutory definition of instrument within Durrant, e.g., See 247, 460 A.2d 501 Pa. (a (1983) pool statutory cue does not fit within the Commonwealth v. crime); of an instrument definition Rodriquez, supra (an razor is not an instru ordinary blade Aycock, Commonwealth v. crime); ment of (18" long piece A.2d 130 of channel steel is Ct. crime). an instrument of not underlying if the claim has merit appellant’s
Even instruction, jury should to the we objected and counsel have object provable the failure to has not caused find that outcome of the trial. nor has it affected the prejudice instruments Appellant charged possessing was setting given an accurate instruction jury crime and of that necessary the elements to convict a defendant forth fair, accurate and com charge The was a judge’s crime. Ohle, of the law. Commonwealth v. plete statement does not Since Pa. of crime and the the knife was an instrument contest in the commission of that the knife was used record is clear pick mentioned the ice crime, the fact that the court also Therefore, this claim of prejudice. caused no and scissors must fail. ineffectiveness claim of ineffectiveness alleges a further
Apрellant applica- sentencing judge’s to the object counsel’s failure to the provision enhancement deadly weapon tion *13 aggravated assault conviction. Appellant argues that weapons enhancement was erroneous for two reasons. First, 303.4(b) because Pa.Code provides that there § shall be no deadly weapon enhancement for conviction un- 2702(a)(4) der 18 relating Pa.C.S.A. to aggravated assault § weapon. As deadly appellant was convicted under 2702(a)(1) 2702(a)(4), Pa.C.S.A. and not this claim has § § no merit. also
Appellant argues that the dеadly weapon en hancement should be eliminated for 303.4(c) states, pursuant to which “Where there are sen § tences for arising transaction, crimes from the same deadly weapon enhancement shall be applied only to the conviction offense highest which has the offense gravity However, (c) score.” subsection 303.4 not did become § effective until January and such amendments are only applicable to offenses committed on or after effec 303.1(d). tive date. See Since the offenses were commit § 17, 1983, ted on (c) March subsection is inappliсable to the Therefore, case at bar. this contention is also meritless. Appellant further contends that counsel was ineffective in failing challenge the sentencing court’s error calcu- lating appellant’s prior record score. The appellant’s sen- tences on robbery, aggravated assault and in- possessing struments imposed of crime were all consecutively and the sentencing judge arrived at a record prior score “6” for each of these offenses. Appellant argues his offenses arose out of the same transaction and that under 303.6 of § Guidelines, the Sentencing trial court have should used once, prior his record score for only robbery, and calculated the remaining prior sentences with a record score zero. 303.6, 204 Pa.Code provides: found at 42 Pa.C.S.A. 9721 § § 303.6. Consecutive sentences. §
(a) When imposing consecutive for sentences convic- transaction, the same arising tions out of prior is computed record score the highest offense with gravity offense score in For the re- such transaction. maining transaction, offenses in such record prior zero, score added) shall (emрhasis be *14 (b) sentences for convic- imposing consecutive When transactions, separate arising prior out of tions shall for each computed independently record score be conviction, added) (emphasis
The issue is whether the convictions arose out must at the that our transaction. It be stated outset same supra, and holding aggravated robbery assault sentencing merger, does precluding criminal acts separate since criminal acts which dispose separate of this issue not sentences, same can arise out of the conseсutive demand language By is of 303.6. implicit This transaction. § Terrizzi, 348 Pa.Su v. Commonwealth example, of way (1985) appellant A.2d 711 was convicted perior 502 Ct. merge crimes did not rape burglary, of and which However, stated, ap “It the court sentencing purposes. burglary record score for should pears proper prior imposed sen zero the court consecutive have been because 204 Pa.Code 303.- the same transaction. involving tences § ” Id., 7,n. at 716 n. Ct. at 615 502 A.2d Pa.Superior 6. 7. com- three criminal convictions appellant’s find that
We temporal to the close criminal trаnsaction due prised one The Pennsylvania of the crimes. logical relationship and stated, to sec- Sentencing has in reference on Commission 303.6(a), tion that: commit- crime or crimes which were
A “transaction” a single temporally at time or in a defendant a ted part episode, of the same that are continuous actions event, or incident ... 1986) find that p. 51. We (September
Pa.C.Sent.2d of instruments aggravated possessing assault robbery, criminal contiguous train of of a part single crime were activity. in the criminal “break” no substantial events with Flenory, Ct. See A.2d in assign erred
Therefore, sentencing judge aggravated of “6” for score ing prior record possessing instruments of crime. In accordance with 204 303.6(a), prior Pa.Code record score for these two § offenses should have been “0” since is the offense with the highest gravity score. This sentencing error provable prejudice caused to appellant.10 We find that trial counsel was in failing object ineffective to the calculation score. prior record for resentencing We remand on the convictions assault and possessing instru- ments crime. Prior record scores of zero аre to be used offenses, for both of these in accordance with the Sentenc- ing Guidelines.
Appellant’s final claim of ineffectiveness is based on counsel’s failure to request the sentence be vacated as a result of the sentencing judge’s alleged failure to state on record adequate the deviating reasons for from the Sentenc- ing Guidelines. Only imposed the sentence for possessing instruments of crime guidelines. deviated from the Since the lower court erroneously applied a prior record score of “6” when calculating for the sentence this conviction we must remand for resentencing. Therefore, we need not determine whether the reasons supporting the sentence adequately articulated on the record.
This case is remanded for resentencing on the convictions aggravated of possessing instruments of crime opinion. accordance with this Jurisdiction relinquished.
WIEAND, J., filed a concurring statement.
Guidelines,
Sentencing
303.8(d),
10. Pursuant
the
to
204 Pa.Code §
aggravated
bodily injury
assault which causes serious
has an offense
gravity
prior
score
“7”.
of
With a
score
record
of “0” the minimum
range
months,
sentencing
for
aggravated
be from
would
8 to
the
months,
range
minimum
would
from
mitigated
be
12 to 18
However,
range
minimum
would
utilizing
be from to 8 months.
a
"6”,
prior
range
sentencing
record
of
score
the minimum
for
increases
months,
to 43 to 64
range
minimum
is 64 to 80
months,
mitigated
range
and the
minimum
is 32
to
months.
imposed
aggrava-
While the actual sentence of 60 to 120 months
Sentencing
prior
assault fell
ted
within the
Guidelines when a
record
used,
of “6”
substantially
score
such
sentence would deviate
using
if
from
Guidelines
the sentence
been
had
calculated
prior
correct
record score
“0”.
WIEAND,
concurring:
Judge,
opinion.
sepa-
excellent
I writе
Judge
I
Cercone’s
join
to the
only
emphasize my
continued adherence
rately
merger
sentencing purposes
of offenses for
that the
view
post-sen-
to raise it in a
by
which is waived
failure
an issue
where,
here,
as
the sentence
tencing
modify
motion
of the record and can
apparent
is not
from
face
merger
analysis
after a
only
be determined
review
Campbell, 351 Pa.Su-
evidence. See: Commonwealth v.
Wieand,
(Concurring Opinion by
per.