Com. v. Anderson

Decision Date15 July 1992
Citation416 Pa.Super. 203,610 A.2d 1042
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Steven Keith ANDERSON, Appellant.
CourtPennsylvania Superior Court

G. Roderick Snyder, Reading, for appellant.

Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellee.

Bradley S. Bridge, Asst. Public Defender, Philadelphia, amicus curiae.

Before WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON and HUDOCK, JJ.

HUDOCK, Judge.

This is an appeal from the judgment of sentence imposed upon Anderson after a jury convicted him of attempted murder, 1 aggravated assault 2 and possession of an instrument of crime. 3 Timely filed post-verdict motions were denied by the trial court and Anderson was sentenced to serve consecutive terms of imprisonment of not less than four nor more than eight years for attempted murder, not less than six nor more than twelve years for aggravated assault, and not less than one nor more than two years for possession of an instrument of crime. A direct appeal to this Court followed. We affirm.

When defense counsel failed to file an appellate brief, Anderson's direct appeal to the Superior Court was dismissed. Pursuant to his petition for post conviction relief, however, the Superior Court granted Anderson the right to file a direct appeal nunc pro tunc, limited to the issues previously raised in post-trial motions. Before a three-member panel of this Court, Anderson charged the trial court with three errors: (1) refusing to permit Anderson to conduct a demonstration before the jury regarding the manner in which he usually held a shotgun; (2) refusing to grant a new trial because of adverse mid-trial publicity; and (3) failing to merge his convictions for aggravated assault and criminal attempt murder for sentencing purposes.

The panel found no error on the trial court's part regarding Anderson's first and second challenges. On the issue of merger, however, the panel held that aggravated assault is a lesser included offense of attempted murder and therefore the convictions merged for sentencing. 4 Pursuant to the panel's decision, the judgment of sentence was vacated and the case was remanded for resentencing. The Commonwealth's Petition for Reargument En Banc was granted because of the conflict the Anderson panel's decision created with another Superior Court panel decision, Commonwealth v. Fuller, 396 Pa.Super. 605, 579 A.2d 879 (1990).

The same three issues presented to the panel are before this Court sitting en banc. The facts as summarized by the trial court are as follows:

The incident in question occurred in the early evening of October 31, 1987 at the home the defendant shared with the victim, Norma DeBooth, and her nine year old son. Ms. DeBooth was standing at the kitchen sink preparing dinner when she was shot in the back of the neck by the defendant. Wile [sic] the defendant alleges that he was merely cleaning the gun when it went off, Ms DeBooth, now paralyzed, testified in open court that the defendant in fact told her he was going to shoot her immediately before she was actually shot.

Trial Court Opinion at p. 1-2.

During direct examination at trial, defense counsel asked Anderson, "Now, how do you normally hold your rifle when you aim it at something?" The prosecutor objected to this question and the trial court sustained the objection. Defense counsel made no offer of proof in response and the issue was not pursued. Post-trial, Anderson revisited the issue, asserting that the trial court's ruling prevented him from establishing for the jury that the shooting had been accidental. Anderson claims the demonstration would have bolstered his version that the shooting occurred while he was seated at the kitchen table cleaning his shotgun, and that it would have cast doubt on the victim's testimony that Anderson shot her while standing upright.

We find no merit in this argument. In this Commonwealth, "wide discretion is vested in the trial judge in permitting demonstrations or experiments to be made in the presence of the jury." Commonwealth v. Thomas, 394 Pa.Super. 316, 323, 575 A.2d 921, 924 (1990) (quoting Commonwealth v. Soli, 273 Pa.Super. 158, 165, 417 A.2d 216, 219 (1979)). The trial court reasoned, "The proper issue for discussion is not how the defendant normally holds the gun but how he held the gun on that particular occasion." Trial Court Opinion at p. 4. Anderson was permitted to fully explain his version of the shooting as an accident. Any self-serving demonstration regarding how Anderson normally holds a gun would have been irrelevant to how the shooting at hand occurred. Because the admission of evidence, with respect to relevance, rests largely within the discretion of the trial court, and the requested demonstration would have shed no light on the manner of this shooting, we find no abuse in the trial court's ruling.

Anderson's second challenge, that the trial court erred in denying his new trial motion on grounds of mid-trial publicity, is also without merit. During the trial, two articles involving this case appeared in the Reading paper. Neither was on the front page nor highlighted in any other manner. We find The Honorable Calvin E. Smith correctly addressed this issue in his opinion of January 27, 1989, and, on the basis of that opinion, we affirm.

The issue which brings the matter to the court en banc is the third and most troublesome issue Anderson raises: Whether crimes of attempted murder and aggravated assault merge for sentencing purposes. We note initially that, although Anderson did not raise his third issue at the trial court level, the issue of merger implicates the legality of sentencing, and, therefore, may not be waived. See Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986), alloc. denied, 517 Pa. 602, 536 A.2d 1327 (1987); Commonwealth v. Blassingale, 391 Pa.Super. 395, 571 A.2d 426, alloc. denied, 526 Pa. 627, 584 A.2d 311 (1990). We hold that, under the current merger test and the particular facts of this case, the crime of aggravated assault is not a lesser included offense of attempted murder and, therefore, the two crimes do not merge for sentencing purposes.

The common law doctrine of merger in Pennsylvania was significantly altered by the Supreme Court in its recent decisions of Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989) and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989). In Leon Williams, the Supreme Court granted an allowance of appeal to decide the question of whether convictions merge for sentencing purposes when they arise from the same criminal act. Leon Williams pleaded guilty to aggravated assault, criminal attempt at robbery, and unlawful restraint as a result of charges which arose from a May 30, 1986, incident where Williams attacked a sixty-one-year-old woman. Attempting to rob the woman, Williams grabbed her from behind, choked her and threw her to the ground. Hearing the victim's screams, neighbors came to her aid and Williams ran from the scene before he was able to complete the robbery. Subsequently, Williams was apprehended and positively identified by the victim. As a result of the attack, the victim suffered a broken nose, fractured skull and foot, black eyes, cuts, bruises, abrasions, and psychological trauma.

Williams was sentenced to five to ten years for aggravated assault, a consecutive term of one and one-half to ten years for attempted robbery, and a consecutive term of one and one-half to five years for unlawful restraint; Williams' aggregate sentence thus was eight to twenty-five years. His motion for reconsideration was denied and Williams appealed to this Court. A panel of this Court partially vacated the judgment of sentence and remanded for resentencing. The panel majority's basis for its disposition was that the unlawful restraint conviction merged with the aggravated assault and the attempted robbery convictions for sentencing purposes. Commonwealth v. Leon Williams, 368 Pa.Super. 315, 534 A.2d 101 (1987). The panel grounded this result on their belief that the unlawful restraint of the victim was coextensive with the restraint occasioned by the aggravated assault and attempted robbery of the victim. In other words, the panel majority found that the aggravated assault and attempted robbery " 'necessarily included' the unlawful restraint involved such that proof of both the aggravated assault and the criminal attempt robbery required proof of the acts upon which the unlawful restraint conviction is predicated." Leon Williams, 534 A.2d at 104-05.

The panel majority rejected the Commonwealth's contention that a separate and distinct interest of the Commonwealth is vindicated by the unlawful restraint conviction. The panel majority, however, also rejected Williams' claim that aggravated assault and attempted robbery merged for sentencing purposes, finding that each conviction vindicated a different interest of the Commonwealth. 5

When the case reached the Supreme Court, that Court began its analysis by explaining the merger test it had previously announced in Michael Williams. The Court reiterated the first prong of that test as follows:

Crimes "necessarily involve" each other, therefore, if one of two possible scenarios occurs: (1) the crimes have the same elements (i.e., lesser included offenses), or (2) the facts of the case are such that although the elements of the crimes differ, the facts which establish one criminal charge also serve as the basis for an additional criminal charge. An example of this is the case at bar, where the facts of throwing the victim down and beating her simultaneously establish the factual basis for the crimes of aggravated assault and unlawful restraint.

Leon Williams, 559 A.2d at 27-28 (footnotes omitted). The Supreme Court then defined a lesser included offense as "a crime the elements of which are a necessary subcomponent but not a...

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13 cases
  • Com. v. Anderson
    • United States
    • Pennsylvania Superior Court
    • May 26, 1994
    ...Quinlan, supra (sentence imposed or modified by a tribunal without jurisdiction is not a legal sentence); Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992) (en banc ) (a challenge to separate sentences imposed for crimes which should have merged for sentencing purposes is an......
  • Com. v. Rosario-Hernandez, ROSARIO-HERNANDE
    • United States
    • Pennsylvania Superior Court
    • September 20, 1995
    ...Although we have previously stated, in Commonwealth v. Lopez, 426 Pa.Super. 625, 627 A.2d 1229 (1993) and Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992), rev'd, 538 Pa. 574, 650 A.2d 20 (1994), that a lesser offense could not be graded higher than the offense into which i......
  • Com. v. Hutchinson
    • United States
    • Pennsylvania Superior Court
    • March 9, 1993
    ...at 28, n. 2.2 This court, en banc, wrestled with the question of what lesser included offenses are recently in Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992) and Commonwealth v. Wood, 417 Pa.Super. 264, 612 A.2d 474 (1992). In both cases the court divided five to four on ......
  • Com. v. Huckleberry
    • United States
    • Pennsylvania Superior Court
    • August 31, 1993
    ...in the result. Id. Burkhardt thus is a plurality decision which has no precedential effect. Commonwealth v. Anderson, 416 Pa.Super. 203, 217-218 n. 8, 610 A.2d 1042, 1048 n. 8 (1992) (en banc ); Commonwealth v. Brown, 415 Pa.Super. 534, 540-541, 609 A.2d 1352, 1356 (1992).8 Because the sent......
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