Com. v. Jones

• Decision Date: 28 December 2006
• Citation: 912 A.2d 815
• Court: Pennsylvania Supreme Court
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Andre JONES, Appellant.

912 A.2d 815

COMMONWEALTH of Pennsylvania, Appellee, v. Andre JONES, Appellant.

Supreme Court of Pennsylvania.

Argued October 18, 2005.

Decided December 28, 2006.

Dean M. Beer, Esq., Karl Baker, Esq., for Andre Jones.

Hugh J. Burns, J., Philadelphia, for Commonwealth of Pennsylvania.

Ronald Eisenberg, Office of the District Attorney of Philadelphia, for appellee.

BEFORE: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice CASTILLE.

Appellant Andre Jones appeals from the Superior Court's order affirming the trial court's judgment of sentence for one count of burglary, 18 Pa.C.S. § 3502(a), and one count of criminal trespass, 18 Pa.C.S. § 3503. The sole issue on appeal is whether the trial court erred in sentencing appellant to consecutive sentences for burglary and criminal trespass where one act was involved and the same facts established nearly identical elements for both crimes.¹ We now reverse the Superior Court and hold that criminal trespass is a lesser included offense of burglary for sentencing purposes, causing the sentences for the crimes to merge. We therefore vacate the sentence for criminal trespass.

On July 31, 2002, at approximately 10 p.m., Julia Wellons heard noises coming from the inside of her house as she sat on the front porch of her home in Philadelphia. When Wellons went inside, she discovered that her previously locked back door was open. As she investigated further, she found her second floor bedroom light was turned on and her wallet was lying on her bed with the money removed. Upon hearing noises on the third floor, she phoned the police and shouted up the stairs that she had done so. She then heard someone trying to break through her third floor bathroom window and she began to climb the stairs, when she saw appellant, her next-door neighbor, in the bathroom. Before the police came, appellant jumped out of the window onto a shed adjacent to the home and fled. Following a conversation with Wellons, the police went next-door and arrested appellant.

After a bench trial, appellant was found guilty of one count of burglary and one count of criminal trespass. On March 5, 2003, appellant was sentenced to ten to twenty years of imprisonment for burglary and two to ten years imprisonment for criminal trespass, the sentences to run consecutively.² Appellant appealed to the Superior Court.

The Superior Court affirmed the trial court's judgment of sentence in an unpublished memorandum opinion. As to the issue of whether criminal trespass and burglary merge at sentencing, the panel held that criminal trespass is not a lesser included offense of burglary, since criminal trespass contains a scienter requirement not included within the elements of burglary. The panel began its analysis by citing Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994), for the proposition that sentences merge if the elements of the lesser crime are included within the elements of the greater crime, and the greater offense includes an additional element not included within the lesser crime.³ The court concluded that criminal trespass and burglary do not merge by relying on Commonwealth v. Harrison, 444 Pa.Super. 103, 663 A.2d 238 (1995), which observed that the elements of criminal trespass require a defendant to know he is not privileged to enter a property, whereas burglary contains no such requirement.

Appellant claims that criminal trespass should merge with burglary for sentencing purposes because every burglary also constitutes a criminal trespass. Appellant argues that his convictions should merge under the OAJC in Gatling, 570 Pa. 34, 807 A.2d 890, because they arose out of the same criminal act and the charge of criminal trespass is a lesser included offense of burglary. He also argues that his sentences merge under the test set forth in Commonwealth v. Comer, 552 Pa. 527, 716 A.2d 593 (1998), where this Court held that sentences should merge where one set of facts supports the elements of two offenses. Appellant acknowledges that it is reasonable for the Commonwealth to charge a defendant with both criminal trespass and burglary where the Commonwealth is uncertain it is able to prove a defendant's intent to commit a crime at entry, but asserts that there is no logical justification for subjecting a defendant to multiple and consecutive terms of imprisonment when the act of burglary is proven at trial.

The Commonwealth counters by arguing that merger is a question of legislative intent, and 42 Pa.C.S. § 9765 states that offenses merge only where "all of the statutory elements of one offense are included in the statutory elements of the other offense" and the crimes arise from a single criminal act. Moreover, the Commonwealth argues that this Court has consistently held that crimes do not merge unless they are lesser and greater included offenses. In the Commonwealth's view, departures from that doctrine, notably in Gatling, are nonbinding dicta. The crimes that appellant was convicted of sub judice are not lesser and greater included offenses, according to the Commonwealth, because each crime includes an element that the other crime does not. Burglary requires the intent to commit a crime within a building at entry, while criminal trespass does not. Criminal trespass requires a breaking into a structure, while burglary requires only entry into a building. Therefore, the Commonwealth argues, it is possible to commit one offense without committing the other.

In courts across the nation, analysis of lesser and greater included offenses typically falls into one of three categories. 4 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE 576 (2d ed.1999). First, the "statutory elements test" limits a court to comparing the elements of the crimes, without reference to how the crimes were committed in a particular case, to determine whether in committing one offense the defendant has also committed a lesser offense. Id. The primary criticism of this test is that it is too inflexible, frequently ignoring the true nature of criminal conduct by excluding a lesser included offense; but the test is praised for its consistency which promotes judicial efficiency. Id. at 578. Second, the "cognate-pleadings" approach does not require that all of the elements of a lesser included offense be subsumed within the higher offense, and instead instructs a court to assess the relationship between crimes by looking at the pleadings in a case. Id. at 579-80. Third, the "evidentiary" approach allows a court to analyze the actual proof submitted at trial, rather than only the pleadings, to examine the relationship between the crimes committed. Id. at 581. Critics of this approach complain that it leads to too many crimes being deemed lesser included offenses and places both parties at a disadvantage in preparing for trial, while proponents of the method counter that all of the prosecution's proof is known from the start of a case. Id. at 583. As detailed below, this Court's own analysis of lesser and greater included offenses has evolved over time, in the sentencing merger context, from a strict statutory elements test to a hybrid of both the statutory elements and cognate-pleadings approaches. This development perhaps corroborates Justice Holmes' observation that, "[t]he life of the law has not been logic: it has been experience." OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (1881).

Nearly three decades ago, in Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978), this Court confronted an issue similar to the one before us today and utilized a merger analysis that most closely resembles a statutory elements approach. Carter did not involve sentencing merger, but instead a due process challenge where a defendant who was charged only with committing burglary was convicted for the uncharged crime of criminal trespass. With Justice Roberts (later Chief Justice) writing for the majority, this Court reasoned that criminal trespass is not a lesser included offense of burglary because the statutory definition of criminal trespass has a scienter requirement absent from the definition of the more severe offense.

[T]hus, one defending against a burglary charge would have no reason to establish that (albeit falsely) he believed his presence in a building or occupied structure was privileged or licensed. Yet evidence of such a belief could provide a basis for an acquittal of a charge of criminal trespass.

Id. at 661. Given the deficiency in notice, the Carter Court held, it was a violation of due process to convict the defendant of criminal trespass when he was not indicted on that charge. Id.

Since Carter, however, our precedent in the related but distinct area of sentencing merger has adopted a more flexible and realistic approach, which renders untenable, for merger purposes, Carter's view that burglary and criminal trespass are not greater and lesser included offenses. More than a decade after Carter, this Court addressed in Anderson whether, for merger purposes, aggravated assault is a lesser included offense of attempted murder. We attempted to harmonize prior case law by first holding that the same facts may be used to support multiple convictions and separate sentences for each conviction, except where the case involves crimes that are greater and lesser included offenses. Anderson, 650 A.2d at 22.⁴ This Court explained that the test for sentencing merger was the same as the test used to determine whether two offenses have been committed in the double jeopardy context, quoting the inquiry announced in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (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.

Id. at 23 (quoting ...