Com. v. Burkhardt

CourtPennsylvania Supreme Court
Writing for the CourtBefore NIX; McDERMOTT; FLAHERTY, J., files a concurring opinion in which NIX, C.J., and CAPPY; FLAHERTY; McDermott; This Concurring Opinion is joined by NIX, C.J., and CAPPY
Citation586 A.2d 375,526 Pa. 341
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Kenneth K. BURKHARDT, Appellant.
Decision Date04 February 1991

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586 A.2d 375
526 Pa. 341
COMMONWEALTH of Pennsylvania, Appellee,
v.
Kenneth K. BURKHARDT, Appellant.
Supreme Court of Pennsylvania.
Argued May 11, 1990.
Decided Feb. 4, 1991.

[526 Pa. 342] Peter T. Campana, Marc F. Lovecchio, Williamsport, for appellant.

Ralph A. Germak, Dist. Atty., for appellee.

Stuart Suss, Depty. Dist. Atty., for amicus--Chester Co. Dist. Atty.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

McDERMOTT, Justice.

The appellant and four accomplices left Maryland in a convoy of three automobiles. Their mission: theft of farm equipment in Juniata County, Pennsylvania. The appellant brought a shotgun. Before mission accomplished, the [526 Pa. 343] thieves fell out, an argument between the appellant and accomplice, Bryan Conway, ended in appellant using the shotgun on Conway. Shot four times, Conway was left for dead and the rest fled, empty handed, back to their native Maryland. Conway survived. It was not long before the appellant was before the court in Juniata County charged with nine offenses. 1 He pled guilty to attempted

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murder and possession of an instrument of crime. He was sentenced to five (5) to ten (10) years on the attempted murder plea, and a consecutive term of two (2) to five (5) years on possession of the instrument of crime charge. The remaining seven charges pursuant to the plea bargain were nol prossed.

The plea agreement also addressed the effective run-date of the sentences and the fact that they would be served concurrent with a federal sentence then being served by appellant. The agreement, however, left to the discretion of the trial court the length of the minimum sentences and whether the state sentences should run consecutive or concurrent to each other. In its plea bargain colloquy with appellant, the court clearly and comprehensively advised appellant of the rights he was surrendering in the plea bargain and the full range of the potential sentences that could be imposed. Prior to formal entry of the guilty plea, appellant explicitly acknowledged that he understood his rights and the potential sentences. The trial court imposed the minimum and maximum sentences described above and ran them consecutive to each other. All of which was within the contemplation of the plea agreement, for which appellant received assurances that: (1) the state sentences would run concurrent with his federal sentence; (2) the [526 Pa. 344] run-date of the sentences would be retroactive to the commencement of the federal sentence; and (3) the Commonwealth would drop the other seven (7) counts in the criminal information.

Following sentencing, appellant filed a direct appeal with the Superior Court alleging that the trial court's consecutive sentences were a violation of his state 2 and federal 3 constitutional guarantees against being placed in "double jeopardy" with respect to the "same offense." Appellant also argued, in the alternative, that since the crimes "necessarily involve" each other, they should be merged for purposes of sentencing. The Superior Court rejected both arguments and affirmed the trial court's judgment of sentence. 387 Pa.Super. 646, 559 A.2d 960. In the instant appeal, appellant again raises the issues of double jeopardy and merger. For the reasons set forth below, we affirm the holdings of the lower courts.

In the context of protecting defendants against simultaneous multiple punishments for the "same offense", the concepts of double jeopardy, greater and lesser included offenses and merger are related but separate legal concepts. See Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981). In 1977, Justice Pomeroy, while discussing merger and double jeopardy, frankly acknowledged that "Our decisions on the doctrine of merger are not altogether harmonious." Commonwealth v. Sparrow, 471 Pa. 490, 503, 370 A.2d 712, 718 (1977). Unfortunately, during the ensuing thirteen (13) years, we have only added to the disharmony by promulgating a series of conflicting and confusing decisions, which were consistent only in their [526 Pa. 345] ability to elicit multiple combinations of recommended dispositions, i.e. plurality, concurring, dissenting, part concurring and part dissenting opinions. See Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989); Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989); Commonwealth v. Michael Williams, 514 Pa. 124, 522 A.2d 1095 (1987), cert. denied, 487 U.S. 1208, 108 S.Ct. 2852, 101 L.Ed.2d 889 (1988); Commonwealth v. Hitchcock, 523 Pa. 248, 565 A.2d 1159 (1989); Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d

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1098 (1984); Commonwealth v. Bostic, 500 Pa. 345, 456 A.2d 1320 (1983); Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981); and Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981).

Not surprisingly, this Court has distinguished company, in the justices of the United States Supreme Court and other state courts, in continually and consistently muddying the waters in applying the legal analyses of double jeopardy, greater and lesser included offenses and merger to myriad and variegated facts. See generally, Thomas, Multiple Punishments for the Same Offense: The Analysis After Missouri v. Hunter or Don Quixote, The Sargasso Sea, and the Gordian Knot, 62 Wash.U.L.Q. 79-124, Spring, 1984. 4

Notwithstanding the legal acumen of our distinguished conferees in the confusion, we do a grave disservice to the lower courts, prosecutors, defense counsel and defendants by continuing our fluctuating and fragmented decisions in this area. 5 Accordingly, we now hold that in the [526 Pa. 346] context of simultaneous convictions of multiple offenses, 6 pursuant to guilty pleas or trial verdicts, the trial court may sentence separately for each distinct statutory crime of which the defendant is convicted, limited only by express legislative intent to the contrary. 7

In reaching this decision, we are not unmindful of the Blockburger test, first articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932) ("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."). However, since the Blockburger test has been determined by the U.S. Supreme Court to be merely a rule of statutory construction and the Court has acknowledged that the highest state courts are the "ultimate expositors of state law", we are not bound by the Blockburger test in construing our own criminal statutes. See Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981),...

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16 practice notes
  • Com. v. Anderson
    • United States
    • Superior Court of Pennsylvania
    • July 15, 1992
    ...] Commonwealth v. Yates, 386 Pa.Super. 282, 287, 562 A.2d 908, 911 (1989) (emphasis in original). See also, Commonwealth v. Burkhardt, 526 Pa. 341, 349, 586 A.2d 375, 379 (1991) (concurring opinion by Flaherty, J.) (Leon Williams requires merger only where elements of one crime are subsumed......
  • Preik v. Dist. Attorney of Allegheny Cnty., Civil Action No. 10 - 1612
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • August 12, 2011
    ...with the discretion to impose consecutive or concurrent sentences as required by the facts of the case. See Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375 (1991); Commonwealth v. Hoag, 445 Pa. Super. 455, 665 A.2d 1212 (1995) (generally, in imposing a sentence, court has discretion to......
  • Com. v. Barber, No. 1747 MDA 2006.
    • United States
    • Superior Court of Pennsylvania
    • December 3, 2007
    ...law of this Commonwealth when he asserts that the Pennsylvania Supreme Court abandoned the Blockburger test in Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375 (1991). Such is clearly not the case. In Burkhardt (a "Grady-era" case) the Supreme Court of Pennsylvania simply confirmed that......
  • Eddington v. Pennsylvania, Civil Action 3:16-1775
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • June 27, 2022
    ...In Pennsylvania, the imposition of consecutive sentences is within the sound discretion of the trial court. See Commonwealth v. Burkhardt, 586 A.2d 375 (Pa. 1991); Commonwealth v. Hoag, 665 A.2d 1212 (Pa. Super. 1995). Where state courts enjoy discretion in determining whether to impose con......
  • Request a trial to view additional results
16 cases
  • Com. v. Anderson
    • United States
    • Superior Court of Pennsylvania
    • July 15, 1992
    ...] Commonwealth v. Yates, 386 Pa.Super. 282, 287, 562 A.2d 908, 911 (1989) (emphasis in original). See also, Commonwealth v. Burkhardt, 526 Pa. 341, 349, 586 A.2d 375, 379 (1991) (concurring opinion by Flaherty, J.) (Leon Williams requires merger only where elements of one crime are subsumed......
  • Preik v. Dist. Attorney of Allegheny Cnty., Civil Action No. 10 - 1612
    • United States
    • U.S. District Court — Western District of Pennsylvania
    • August 12, 2011
    ...with the discretion to impose consecutive or concurrent sentences as required by the facts of the case. See Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375 (1991); Commonwealth v. Hoag, 445 Pa. Super. 455, 665 A.2d 1212 (1995) (generally, in imposing a sentence, court has discretion to......
  • Com. v. Barber, No. 1747 MDA 2006.
    • United States
    • Superior Court of Pennsylvania
    • December 3, 2007
    ...law of this Commonwealth when he asserts that the Pennsylvania Supreme Court abandoned the Blockburger test in Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375 (1991). Such is clearly not the case. In Burkhardt (a "Grady-era" case) the Supreme Court of Pennsylvania simply confirmed that......
  • Eddington v. Pennsylvania, Civil Action 3:16-1775
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • June 27, 2022
    ...In Pennsylvania, the imposition of consecutive sentences is within the sound discretion of the trial court. See Commonwealth v. Burkhardt, 586 A.2d 375 (Pa. 1991); Commonwealth v. Hoag, 665 A.2d 1212 (Pa. Super. 1995). Where state courts enjoy discretion in determining whether to impose con......
  • Request a trial to view additional results

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