Com. v. Smith

• Decision Date: 13 March 2001
• Citation: 772 A.2d 75
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Walter SMITH, Appellant. Commonwealth of Pennsylvania, Appellee, v. Earnest Gatling, Appellant.
• Court: Pennsylvania Superior Court

772 A.2d 75

COMMONWEALTH of Pennsylvania, Appellee, v. Walter SMITH, Appellant.

Commonwealth of Pennsylvania, Appellee, v. Earnest Gatling, Appellant.

Superior Court of Pennsylvania.

Argued April 17, 2000.

Filed March 13, 2001.

David Zuckerman, Public Defender, John P. Cotter, Philadelphia, for Gatling.

Karl Baker and John Packel, Public Defenders, Philadelphia, for Smith. Michael Morse and Catherine L. Marshall, Assistant District Attorneys, Philadelphia, for Commonwealth, appellee.

Before McEWEN, P.J., DEL SOLE, HUDOCK, EAKIN, JOYCE, STEVENS, MUSMANNO, ORIE MELVIN, and TODD, JJ.

TODD, J.:

¶ 1 The central issue in these consolidated appeals is whether the offenses of statutory sexual assault¹ and corruption of minors² merge for sentencing purposes.³ As set forth below, while the two offenses by their elements do not necessarily merge for sentencing purposes, under the facts of these cases we hold that the sentences should have merged. Accordingly, we are constrained to vacate the judgments of sentence and remand each case for resentencing in accordance with this Opinion.

¶ 2 Any merger analysis necessarily employs not only close examination of the precise words of the statutes involved, but also "must proceed on the basis of its facts." Commonwealth v. Anderson, 538 Pa. 574, 582 n. 3, 650 A.2d 20, 24 n. 3 (1994). Accordingly, we will recite the relevant facts regarding each appeal.

Smith Facts

¶ 3 Walter Smith's convictions stem from an incident on October 18, 1996 that began when C.B., a then thirteen-year-old family friend and neighbor, went to Smith's house and requested a ride to her stepmother's house. Smith, then 34 years old, agreed to the request and picked up C.B. for the ride a short time later. While en-route, C.B. testified that Smith drove to a parking lot, parked his car, locked the car doors, lowered C.B.'s seat and asked her repeatedly to engage in sexual intercourse with him. C.B. refused, but Smith nonetheless climbed on top of her in her seat and forced her to engage in sexual intercourse. Smith then drove C.B. to her stepmother's house.

¶ 4 A jury convicted Smith of statutory sexual assault and corruption of a minor, but acquitted him of rape.⁴ Thereafter, the Honorable Patricia A. McInerney of the Court of Common Pleas of Philadelphia County sentenced Smith to eleven and one half to twenty three months imprisonment for statutory sexual assault to be followed by five years consecutive probation for corruption of a minor. This timely appeal followed.

Gatling Facts

¶ 5 The incidents that gave rise to Earnest Gatling's convictions occurred in 1996 when the victim, J.N., was eleven years old. Gatling, then 27 years old, was a guest in J.N.'s family's home, staying in the basement. On the first occasion in September 1996, Gatling called J.N. to the basement and told her to lie face down on the couch. Gatling then climbed on top of her and, while both were fully clothed, began pushing against her buttocks with his penis for four to five minutes.

¶ 6 The second incident occurred in mid-October 1996 when Gatling again called J.N. to the basement, told her to lie face down on the couch, climbed on top of her, and rubbed his penis against her buttocks. On this occasion, however, Gatling then told the girl to turn over, whereupon he pulled down her pants, then his own, and proceeded to have sexual intercourse with her.

¶ 7 Gatling was convicted of one count each of statutory sexual assault and indecent assault,⁵ and of two counts of corruption of a minor in a bench trial before the Honorable Myrna P. Field of the Court of Common Pleas of Philadelphia County.⁶ Judge Field then sentenced Gatling to twenty-one to forty-two months incarceration on the statutory sexual assault charge followed by a consecutive term of six to twelve months imprisonment on the corruption of a minor charge arising out of the October incident. The sentences on the remaining charges were suspended without further penalty. Gatling's post-sentence motions were denied on January 16, 1998 and this timely appeal followed.

Merger of Sentences

¶ 8 We granted en banc consideration because the issue of whether statutory sexual assault and corruption of a minor merge for sentencing purposes is an issue of first impression before the appellate courts of this Commonwealth.⁷ As this is a question of law, we exercise plenary review. Commonwealth v. Wetton, 405 Pa.Super. 1, 591 A.2d 1067, 1071 (1991), aff'd 537 Pa. 100, 641 A.2d 574 (1994).

¶ 9 While we address here a question of first impression, the broad issue of merger frequently is before the appellate courts of this Commonwealth and we must follow the analytical framework dictated by our Supreme Court's prior jurisprudence. The Supreme Court has noted that:

The question of when sentences should merge is not an easy problem.... Analytically, the problem concerns whether a single criminal plan, scheme, transaction or encounter, which may or may not include many 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.

Anderson, 538 Pa. at 576-77, 650 A.2d at 21.

¶ 10 In Anderson, the Court further noted that "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." Id. at 577, 650 A.2d at 21. When the legislature has not provided guidance, as is the case with statutory sexual assault and corruption of a minor, the courts must make this determination. See id. As our courts often have repeated, the concern is "to avoid giving criminals a `volume discount' on crime." Id. at 579, 650 A.2d at 22.

¶ 11 In Anderson, the appellant was convicted of aggravated assault, attempted murder and possession of an instrument of crime based on a single shooting which left the victim a quadriplegic. The appellant in Anderson argued that the sentences for aggravated assault and attempted murder should merge and the Court agreed. See id. at 583, 650 A.2d at 24.

¶ 12 The Court reasoned that "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." Id. at 579, 650 A.2d at 22. The Court noted:

Our inquiry ... is whether the elements of the lesser crime are all included within the elements of the greater crime, and the greater offense includes at least one additional element which is different, in which case the sentences merge, or whether both crimes require proof of at least one element which the other does not, in which case the sentences do not merge.

Id. at 582, 650 A.2d at 24 (footnotes omitted). Thus, the Court concluded:

It is clear that the offense of aggravated assault is necessarily included within the offense of attempted murder; every element of aggravated assault is subsumed in the elements of attempted murder. The act necessary to establish the offense of attempted murder—a substantial step towards an intentional killing— includes, indeed coincides with, the same act which was necessary to establish the offense of aggravated assault, namely, the infliction of serious bodily injury. Likewise, the intent necessary to establish the offense of attempted murder— specific intent to kill—is greater than and necessarily includes the intentional, knowing or reckless infliction of serious bodily injury, the intent required for aggravated assault, ... Inasmuch as aggravated assault, the lesser offense, contains some, but not all the elements of the greater offense, attempted murder, the two offenses merge for purposes of sentencing.

Id. at 583, 650 A.2d at 24 (citation omitted).

¶ 13 To the extent that its analysis in Anderson appeared to focus solely on the statutory elements of each offense,⁸ the Court clarified in Commonwealth v. Comer, 552 Pa. 527, 716 A.2d 593 (1998) that the facts underlying each conviction must be considered as well.⁹ Therein, the Court specifically rejected an interpretation of Anderson as permitting a merger analysis based on a comparison of the statutory elements alone "without considering the underlying factual circumstances", stating that such an analysis "ignores the context in which the Anderson rule was created." Id. at 537-38, 716 A.2d at 599.

¶ 14 The Court explained:

In Anderson, the defendant committed one criminal act; he shot the victim and critically injured her. In determining whether the single criminal act could support multiple sentences for attempted murder and aggravated assault, we examined whether the elements of the lesser included offense were a necessary subcomponent but not a sufficient component of elements of the other crime.

Id. at 538, 716 A.2d at 599. The Court then stated, "[i]n Anderson, we found that the offenses of attempted murder and aggravated assault did not require proof of a fact which the other did not." Id. at 539, 716 A.2d at 599.

¶ 15 On that basis, the Court went on to conclude that the appellant in Comer, who drove his vehicle into a bus stand while under the influence of alcohol and drugs, hitting two bystanders and killing one of them, could not be sentenced separately for both involuntary manslaughter and homicide by vehicle. Id. at 530-31, 536-38, 716 A.2d at 595, 598-99. The Court held that the offenses merged for sentencing purposes under the facts of that case because:

Appellant's act of recklessly driving his vehicle into the SEPTA bus stand supports both the general element of the `commission of a reckless act' of involuntary manslaughter and the specific requirement of a Vehicle Code violation of homicide by vehicle. Thus, the elements of homicide by vehicle as charged are subsumed in the elements of involuntary manslaughter and neither offense requires proof which the other does

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