Com. v. Fuller

• Decision Date: 27 July 1990
• Citation: 579 A.2d 879,396 Pa.Super. 605
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Dwayne L. FULLER, Appellant. (Two Cases)
• Court: Pennsylvania Superior Court

Page 879

579 A.2d 879

396 Pa.Super. 605

COMMONWEALTH of Pennsylvania, Appellee, v. Dwayne L. FULLER, Appellant. (Two Cases)

Superior Court of Pennsylvania.

Argued March 7, 1990.

Filed July 27, 1990.

J. Richard Robinson, Dillsburg, for appellant.

Gerald A. Lord, Asst. Dist. Atty., York, for Com.

Before WIEAND, TAMILIA and POPOVICH, JJ.

POPOVICH, Judge:

This is an appeal from the judgment of sentence entered on June 15, 1989, in the York County Court of Common Pleas, following appellant's conviction on the charges of aggravated assault, solicitation to commit aggravated assault, conspiracy to commit aggravated assault and attempt to commit aggravated assault. Appellant was consecutively sentenced to five to ten years of imprisonment for the aggravated assault and one and one-half to three years for the criminal solicitation. We affirm.

On appeal, appellant asks the following multitude of questions concerning alleged errors below:

1. Whether the trial court committed prejudicial error by amending the information midway through the trial to include the offense of aggravated assault?

2. Whether counsel was ineffective by not objecting to the trial court's amendment of the information after the trial began which resulted in the deprivation of the defendant's constitutional rights?

3. Whether counsel was ineffective by allowing the defendant to make an inculpatory statement to the police under the mistaken belief that a plea agreement had been reached?

4. Whether the trial court's delay in deciding post-verdict motions denied the defendant prompt and timely access to the appeal system?

5. Whether the trial court abused its discretion in imposing a higher and disproportionate sentence upon the appellant in comparison to co-defendants who were convicted of the same offenses?

6. Whether the trial court abused its discretion by imposing a higher and disproportionate sentence upon the defendant in comparison with co-defendants who were more actively principally involved in the crimes all were convicted of?

7. Whether the trial court erred in imposing consecutive sentences for inchoate conviction and substantive offense which arose out of the same set of facts and circumstances?

8. Whether the verdict was against the weight of he evidence in that the defendant did not intend to commit serious bodily injury by use of a dangerous weapon?

9. Whether the prosecutor committed reversible error in making reference in his closing remark to his own personal beliefs?

10. Whether the prosecutor committed reversible error in making reference in his closing remarks to the commission of crimes that had been dismissed by the court?

11. Whether the court erred in its jury charge by refusing to restrict the Commonwealth as to the facts set forth in the information?

12. Whether the court erred in reading from the comments of Sheldon Toll in his adaptation of the Crimes Code?

13. Whether the trial court's use of an example containing reference to the use of a weapon in the jury charge was reversible error?

The record reveals the following facts: Appellant was solicited by John Baldwin to "rough up" the victim, Terry Weimer, for the sum of $500. Appellant agreed, and, subsequently, Thomas Beavers offered to to perform the task for appellant. Appellant drove Beavers to the victim's home. Beavers then entered the house and shot the victim. Upon hearing the shots, appellant immediately departed, leaving Beavers at the scene.

At trial, appellant contended that he did not envision nor intend that the victim would be shot. Rather, he believed that Beavers would simply "beat up" the victim. However, it is undisputed that the gun used to shoot the victim was owned by appellant and that appellant knew Beavers possessed the gun when he entered the victim's home. Beavers testified that he intended to use the gun to force the victim into the basement where Beavers would then "rough-up" Weimer. Apparently, Weimer refused to follow Beavers' orders and then menaced Beavers with a baseball bat whereupon Beavers shot the victim numerous times. As a result of the shooting the victim was hospitalized for one month, lost thirteen pints of blood and partially lost the use of his right hand.

Originally, appellant was charged with attempt to commit criminal homicide, conspiracy to commit criminal homicide and solicitation to commit criminal homicide. However, immediately prior to the beginning of trial, the prosecution sought to amend the indictment and information to include an aggravated assault charge. (Trial Transcript, p. 34) The motion to amend was granted. ¹ Following the close of the Commonwealth's case, the lower court granted demurrers to the attempted criminal homicide and related inchoate offenses. Appellant was convicted and sentenced on the remaining charges. This appeal followed.

First, appellant contends the lower court committed prejudicial error by permitting amendment of the information to include the offense of aggravated assault. Pa.R.Crim.P. 229, Amendment of Information, specifically states:

The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interest of justice.

In Commonwealth v. Stanley, 265 Pa.Super. 194, 212-13, 401 A.2d 1166, 1175 (1979), affirmed, 498 Pa. 326, 446 A.2d 583 (1982), we explained:

The purpose of Rule 229 is to insure that a defendant is fully apprised of the charges against him, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed. (Citations omitted) In effecting this purpose, the courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If however, the amended provision alleges a different set of events, or the elements or defenses to the amended provision crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted. (Footnotes omitted)

See also Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984).

The Commonwealth argues that aggravated assault is a lesser included offense of attempted murder, and consequently, amendment was proper. In support of its position, the Commonwealth cites Commonwealth v. Shurgalla, 371 Pa.Super. 244, 537 A.2d 1390 (1988) and Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983). The Commonwealth contends that Shurgalla and Ford held that aggravated assault was a constituent offense of attempted murder and, for the purposes of sentencing, merged with the more serious offense. While we do not agree with the Commonwealth that aggravated assault is a lesser included offense of attempted murder, we will nevertheless permit the amendment.

Instantly, the Commonwealth has failed to note the distinction between offenses that merge under the prior "interest of the Commonwealth" test and lesser included offenses. The recent Pennsylvania Supreme Court decision in Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989) is illustrative. In Williams, supra, the Court held that the doctrine of merger based on whether the Commonwealth has interest in prosecuting a defendant for more than one crime was abrogated. Now, merger occurs only when, of the two crimes arising from a single criminal episode one of the crimes is a lesser included offense of the other. Williams, 559 A.2d at 29.

To quote from Williams, 559 A.2d at 28 n. 2., "[a] lesser included offenses is a crime the elements of which are a necessary subcomponent but not a sufficient component of elements of another crime, the greater included offense." In other words, it must be impossible to commit the greater offense without also committing the lesser included offense. Instantly, it is obvious when the elements of criminal attempt murder and aggravated assault are compared that a criminal attempt murder can occur without a constituent aggravated assault.

Criminal attempt, 18 Pa.C.S.A. § 901(a), states: "A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step towards the commission of that crime." Thus, criminal attempt murder requires 1) specific intent to kill and 2) any act which constitutes a substantial step towards killing. On the other hand, aggravated assault, 18 Pa.C.S.A. § 2702(a)(1), provides: "A person commits an aggravated assault if he attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting an extreme indifference to the value of human life."

It is crucial to note that the word "attempt" as used in the aggravated assault statute does not carry the same meaning as the more general usage of "attempt" in defining the inchoate crime. With respect to aggravated assault, an "attempt" requires more than a mere "substantial step" towards commission, rather it requires at least a simple assault. See Commonwealth v. Russell, 313 Pa.Super. 534, 538-42, 460 A.2d 316, 319-320 (1983), quoting Commonwealth v. Alexander, 477 Pa. 190, 193-94, 383 A.2d 887, 889 (1978). After analyzing the elements of criminal attempt murder and aggravated assault, it is obvious aggravated assault is not a lesser included offense since every element of aggravated assault is not necessarily included in criminal attempt of murder. For example,...