Com. v. Anderson

• Citation: 538 Pa. 574,650 A.2d 20
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Steven Keith ANDERSON, Appellant.
• Decision Date: 26 October 1994
• Court: United States State Supreme Court of Pennsylvania

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650 A.2d 20 538 Pa. 574 COMMONWEALTH of Pennsylvania, Appellee,
v.
Steven Keith ANDERSON, Appellant. Supreme Court of Pennsylvania. Argued Jan. 25, 1994.
Decided Oct. 26, 1994.

[538 Pa. 575] Gail M. Chiodo, Reading, for S.K. Anderson.

Ellen T. Greenlee, John W. Packel, Bradley S. Bridge, Philadelphia, for amici curiae Defender's Ass'n of Phila.

Hugh J. Burns, Jr., Philadelphia, Mark C. Baldwin, Carolyn Daringer, Reading, for Com.

Before NIX, C.J., and FLAHERTY ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

FLAHERTY, Justice.

On October 31, 1987 Anderson shot Norma DeBooth in the neck as she stood at the kitchen sink preparing dinner. She is now a quadriplegic. Anderson was tried by a jury in the Court of Common Pleas of Berks County, Criminal Division, and was convicted of aggravated assault, criminal attempt to [538 Pa. 576] murder, and possession of an instrument of crime. ¹ He was sentenced to consecutive

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terms of four to eight years for attempted murder; six to twelve years for aggravated assault and one to two years for possession of an instrument of crime.

On direct appeal, Superior Court en banc affirmed the judgments of sentence, holding that aggravated assault committed by inflicting serious bodily injury is not a lesser included offense of criminal attempt to murder because the two crimes require distinct mental states, and because injury is not an element of attempted murder, although it is an element of this type of aggravated assault. 416 Pa.Super. 203, 610 A.2d 1042. The dissent argued that because aggravated assault is a lesser included offense of attempted murder and because the crimes arose from a single act, Anderson's criminal act is not punishable by multiple sentences.

We granted allocatur to address the question of whether the crimes of attempted murder and aggravated assault merge for sentencing purposes.

The question of when sentences should merge is not an easy problem, and it excites the advocacy of those favoring stricter against those who favor more lenient sentences. Analytically, the problem concerns whether a single criminal plan, scheme, transaction or encounter, which may or may not include many [538 Pa. 577] criminal acts, may constitute more than one crime, and if it may constitute several crimes, whether each criminal conviction may be punished separately or whether the sentences merge.

Generally, the doctrine of merger is a rule of statutory construction designed to determine whether the legislature intended for the punishment of one offense to encompass that for another offense arising from the same criminal act or transaction. If the legislature were to tell us that crime A merges into crime B, the problem would not arise, for the legislative intent would be manifest. It is in cases where the legislature has not given direction that we must devise a rule.

Five years ago we fashioned a merger doctrine in the cases of Commonwealth v. Williams, 521 Pa. 556, 559 A.2d 25 (1989) and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989). In Williams, the criminal attacked a 61-year-old woman who was walking her dog. He grabbed her from behind, choked her and threw her to the ground, beat her and attempted to rob her. Williams was convicted and sentenced on aggravated assault, criminal attempt at robbery and unlawful restraint. Superior Court determined that this attack was one successive criminal act. Working with that description of the facts, we addressed the question of whether one criminal act can spawn multiple convictions and sentences. We answered that it could so long as sentences are not imposed for both greater and lesser included offenses.

In Weakland, the criminal was convicted and sentenced on a number of crimes, including, inter alia, murder, robbery, criminal conspiracy, kidnapping, aggravated assault, and theft in a criminal episode in which Weakland and his brother robbed a filling station. During the robbery, Weakland murdered the station owner, assaulted the owner's wife, and attacked a customer in the course of trying to escape. He struck the customer with a gun, held him at gunpoint, and forced him to drive Weakland away from the robbery-murder scene. The merger issue in the case concerning this customer-victim was whether the assault in striking the customer with the gun merged into the kidnapping conviction for sentencing purposes. [538 Pa. 578] We held that it did not because the force requirement of kidnapping was supplied by holding the customer at gunpoint, not by the assault, and the assault was, therefore, a separate crime.

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We summarized he holdings of these two cases in Weakland as follows:

In Leon Williams we held that where the same facts are used to support convictions for crimes having different elements, the crimes do not merge for sentencing purposes, unless the same facts support convictions of lesser included offenses. That holding does not apply to the present case [Weakland ] because the problem here is not whether the same facts support multiple convictions, but whether facts in evidence additional to those facts establish aggravated assault, i.e., that James Weakland continued to threaten Mr. Wilson with a handgun, should have been used to satisfy the threat or force requirement of kidnapping. It is our view that the additional facts should be used to satisfy the force or threat element of kidnapping, for otherwise a violent criminal would be permitted to perpetrate multiple crimes while suffering only partial liability for the harm he has wrought.

For the foregoing reasons, we hold that if a person commits one act of criminal violence, and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime. If, however, the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime, then the actor will be guilty of multiple crimes which do not merge for sentencing purposes.

521 Pa. at 364-65, 555 A.2d at 1233.

What we intended by this was that when a person is convicted of several crimes based on the same facts, the sentences for those crimes will not merge unless the crimes are greater and lesser included offenses (Williams ), and this rule is modified by the requirement that if the person commits only one act of criminal violence, but is convicted of several [538 Pa. 579] crimes based on this solitary act, the sentences for those crimes will merge, the lesser into the greater (Weakland ).

Re-examining these cases, and in retrospect, we perceive that our analysis was flawed, although the results were correct. The flaw in the analysis is that there is no legally significant difference between the cases. Whether the criminals in these cases committed one act or many is of no import. In either event, so long as the crimes are not greater and lesser included offenses, they are liable for as many crimes as they are convicted of and may be sentenced for each such crime.

Accordingly, we reaffirm our holding in Williams and abrogate the holding in Weakland. We now hold that in all criminal cases, the same facts may support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser included offenses. "The same facts" means any act or acts which the accused has performed and any intent which the accused has manifested, regardless of whether these acts and intents are part of one criminal plan, scheme, transaction or encounter, or multiple criminal plans, schemes transactions or encounters. In other words, it does not matter for purposes of merger whether one regards Weakland's striking the customer and kidnapping him as one encounter or as two encounters, for the same facts, i.e., striking the victim with a gun, may be used to satisfy the force requirements of at least two crimes, kidnapping and aggravated assault, and the sentences for each crime will not merge because these crimes are not greater and lesser included offenses.

Our concern, as we pointed out in Weakland, is to avoid giving criminals a "volume discount" on crime. If multiple acts of criminal violence were regarded as part of one larger criminal transaction or encounter which is punishable only as one crime, then there would be no legally recognized difference between a criminal who robs someone at gunpoint and a criminal who robs the person and during the same transaction or encounter pistol whips him in order to effect the robbery. [538 Pa. 580] But in Pennsylvania, there is a legally recognized difference between these two crimes. The criminal in the latter case may be convicted of more than one crime and sentences for each conviction may be imposed where the crimes are not greater and lesser included offenses.

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In the case at bar, Anderson committed only one criminal act. He shot Ms. DeBooth and critically injured her by his commission of that single act. The question which arises on our reformulation of the rule is whether Anderson's single criminal...