Com. v. Ford-Bey
| Decision Date | 13 December 1982 |
| Citation | 306 Pa.Super. 288,452 A.2d 729 |
| Parties | COMMONWEALTH of Pennsylvania v. Matheno Ford BEY, Appellant. |
| Court | Pennsylvania Superior Court |
Douglas M. Johnson, Public Defender, Norristown, for appellant.
Ronald Thomas Williamson, Asst. Dist. Atty., Norristown, for Commonwealth, appellee.
Before WIEAND, McEWEN and POPOVICH, JJ.
After a jury trial, appellant, Matheno Ali Ford-Bey, was found guilty of Criminal Attempt to Commit Murder (18 Pa.C.S.A. § 901), Recklessly Endangering Another Person (Id. at § 2705) and Possession of an Instrument of Crime (Id. at § 907). Post-trial motions were filed and denied. Thereafter, appellant was sentenced to serve 2 to 5 years for attempted murder and a concurrent 2 to 5 years for possession of an instrument of crime. The sentence for reckless endangerment was suspended. This appeal followed. We reverse in part and affirm in part.
The facts concerning the instant case, viewed in a light most favorable to the verdict-winner, consist of the following: On April 6, 1980, Thomas Jones was with his girlfriend at her sister's apartment, which was located in Pottstown, Pa. At approximately 2:30 p.m., the doorbell rang and Jones used the intercom system to ask who it was. When the caller identified himself as "Sam," Jones recognized that it was Sanford Harling, Jr., an acquaintance he had known for some nine, ten months prior to this date. When Jones informed his girlfriend's sister who it was, she told him to let the person in. Jones complied and depressed a button on the intercom that released the lock on the entrance to the apartment building. Jones peered through the "peep-hole" and saw no one other than Harling standing outside the door. However, when the apartment door was opened, he observed Harling in the company of the appellant and Eli Ford-Bey, appellant's brother, whom he had known for about a year and a half. Eli directed Jones to step outside. When Jones asked why, he received no response. Eli merely stated, "Come outside or we are going to come inside and get you." At this point, Jones' girlfriend arrived at the door, pulled him (Jones) back into the apartment and locked the entrance. Eli warned Jones that if he stayed in the room, the door would be kicked down.
Jones, in an attempt to protect himself, retreated to the kitchen and retrieved a carving knife, which was about a foot in length--handle and blade. Jones placed the knife in his slacks, but the handle was clearly visible. Thereafter, Jones stepped outside the door and Eli grabbed him by the collar to pull him down the stairs. Jones reacted by "withdr[awing] the carving knife from [his] side." Eli, in turn, also pulled a knife. Harling, seeing the weapons, stated "there wasn't going to be any knives used, to give him the knives." Eli complied, but Jones refused. The four men then made there way outside the building. Once in the open, Jones observed Eli pass a gun to the appellant. Then, appellant, at a distance of about five, six feet, aimed the weapon at the victim and pulled the trigger. However, "it didn't go off" because the safety was on. After releasing the safety, appellant pulled the trigger again, and this time it fired, striking the victim in the right side of the chest. The victim, although wounded, made his way back to the apartment and had the police summoned. Thereafter, the appellant was arrested.
On appeal, appellant contends that the trial court erred in: 1) not charging the jury on the elements of the crime of murder and the common law definition of murder; 2) insufficiently instructing the jury as to each and every element of the crimes; 3) refusing to give a self-defense charge; 4) sustaining the convictions for criminal attempt and possession of an instrument of crime; and 5) upholding appellant's convictions for attempted murder and recklessly endangering another person.
We will consider appellant's first, second and third contentions together, inasmuch as they all deal in some respect with a claimed deficiency in the lower court's charge to the jury.
We note, initially, that after the lower court granted the Commonwealth's request for a correction and clarification on a certain aspect of the charge, the following exchange occurred:
Under Pa.R.Crim.P. 1119(b), (Emphasis added) Instantly, we see, from a review of the transcript, that appellant took no "specific objection" to the charge "before the jury retired to deliberate." In similar situations, the courts of this Commonwealth have stated: Commonwealth v. Scarpino, 494 Pa. 421, 428, 431 A.2d 926, 929 (1981) (citing cases); Commonwealth v. Hill, 492 Pa. 100, 422 A.2d 491 (1980) (Opinion in Support of Affirmance). We can do no less in the case at bar.
The fourth assertion proffered by appellant concerns his conviction and sentence for both attempted murder and possession of an instrument of crime. The lower court's response to such averment is that, "even if we assume the [appellant] is correct, the practical effect of the 'possession' conviction is non-existent since the sentence of two to five years runs concurrently with the attempted murder sentence of two to five years, there is no additional penalty, hence any further discussion is superfluous." (Lower Court's Opinion at 4) We disagree.
Under 18 Pa.C.S.A. § 906 "A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime."
The two crimes for which the accused was found guilty by the jury fall within the perimeter of Chapter 9 of the Crimes Code, the Chapter mentioned in Section 906, and it is obvious from the facts recounted herein that both offenses were committed with one objective in mind. Accordingly, appellant's conviction for attempted murder and possession of an instrument of crime was improper. See Commonwealth v. Von Aczel, --- Pa.Super. ---, 441 A.2d 750 (1982); Commonwealth v. Turner, 290 Pa.Super. 428, 434 A.2d 827 (1981).
Inasmuch as the lower court was erroneous in its interpretation of the law, to remedy the situation, we have the option to either remand for resentencing, or amend the sentence, directly. Act of July 9, 1976, P.L. 586, No. 142, § 2, June 27, 1978; 42 Pa.C.S.A. § 706 (Purdon's 1981). We exercise our discretion, as permitted by statutory and case law, to amend the sentence on appeal. Since the sentence of possession obviously did not affect the sentence for attempted murder, both consisted of two to five years imprisonment and were ordered to be served concurrently, 1 Commonwealth v. Von Aczel, supra, --- Pa.Super. at ---, 441 A.2d at 756; Commonwealth v. Turner, supra.
Lastly, appellant avers that the trial court erred in sustaining his conviction and sentence for attempted murder and recklessly endangering another person, since the former offense requires a specific intent and the latter necessitates a reckless act. (Appellant's Brief at 10)
Although inartfully stated, appellant seems to be arguing that the two offenses just cited merge, and, therefore, the sentence imposed for both offenses, albeit to be served concurrently, is prohibited. We do not agree.
To begin with, the test for merger of offenses was stated in Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 104-105, 21 A.2d 920, 921 (1941), as follows:
In the case before us, appellant was convicted of recklessly endangering another person. A person is guilty of this offense "if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa.C.S.A. § 2705. As for the conviction of attempted murder, one is guilty of such offense if he takes a substantial step toward the commission of a killing, with the specific intent in mind to commit such act. Commonwealth v....
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