Com. v. Spells

• Decision Date: 01 July 1992
• Citation: 417 Pa.Super. 233,612 A.2d 458
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Geneva SPELLS, Appellant.
• Court: Pennsylvania Superior Court

Page 458

612 A.2d 458

417 Pa.Super. 233

COMMONWEALTH of Pennsylvania, Appellee, v. Geneva SPELLS, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 12, 1991.

Filed July 1, 1992.

Bradley S. Bridge, Philadelphia, for appellant.

Hugh J. Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com.

Before WIEAND, McEWEN, OLSZEWSKI, DEL SOLE, BECK, TAMILIA, POPOVICH, JOHNSON and HUDOCK, JJ.

HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Spells after she was found guilty, following a non-jury trial with stipulated facts, of aggravated assault, ¹ simple assault, ² possession of an instrument of crime, ³ and reckless endangerment of another person. ⁴ Timely-filed post-verdict motions were denied by the trial court and Spells was sentenced to the mandatory minimum sentence of five years pursuant to 42 Pa.C.S. section 9712 (Purdon 1982 & Supp.1991) (Sentences for offenses committed with firearms). We affirm.

The sole issue raised by Spells on appeal is as follows:

Is not a mandatory five year to ten year sentence of incarceration for aggravated assault unlawful, as it is unconstitutionally disproportionate and irrational when aggravated assault is a lesser included offense of attempt[ed] murder of the first degree, a crime for which there is no mandatory sentence?

Appellant's Brief at p. 2.

The facts, as stipulated to by the parties, were summarized by the trial court as follows:

On September 18, 1987, Geneva Spells purchased a gun in Dallas, Texas where she lived and flew to Philadelphia to shoot her estranged husband. (N.T., Preliminary Hearing, 10/28/87, pg. 14). Finding her husband at work she walked up to him and from a distance of one foot, pulled the trigger of the loaded gun pointed directly at his head. (N.T., Preliminary Hearing, pg. 6). The complainant avoided death because the gun had a very tight trigger which the defendant could not operate. (N.T., 11/6/89, p. 24-25; 5/24/90, pg. 3) [.] When the gun did not go off she repeatedly pulled the trigger to discharge the gun. (N.T., pg. 6, 15). Security guards took the weapon from the defendant and arrested her. That same day the defendant described the incident as follows: "I pointed it at him and pulled the trigger as hard as I could, but it did not go off. I kept pulling the trigger, and then he took it from me. I did this because of past problems over the past 21 years. The way I feel right now, I would do it again, and the next time I will take the time to do it more properly." (N.T., 10/28/87, pg. 15).

Trial Court Opinion at pp. 1-2.

While Spells' own admission indicates that she intended to kill her estranged husband by pointing a gun at his head and pulling the trigger, the Commonwealth did not charge Spells with criminal attempt murder. In her post-verdict motions, Spells argued to the trial court that it was error to consider the aggravated assault conviction as a first degree felony, because it is a lesser included offense of attempted murder, a second degree felony. Spells claimed it would be irrational, fundamentally unfair and arbitrary to grade a greater offense less severely than a lesser included offense; moreover, such a grading would violate several constitutional protections under the state and federal constitutions. The trial court agreed, ruling that any sentence in excess of ten years incarceration--the maximum sentence that may be imposed for the second degree felony of attempted murder--violated both the Pennsylvania and United States Constitutions. The trial court also found, however, no constitutional impediment to the application of the mandatory sentencing provisions of 42 Pa.C.S. section 9712. Spells again raised the latter issue in a timely-filed motion to modify sentence which was denied by the trial court. Hence, the issue is now before this Court on appeal.

Section 9712 provides, in pertinent part:

§ 9712. Sentences for offenses committed with firearms

(a) Mandatory sentence.--Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

42 Pa.C.S. § 9712(a) (emphasis added). A reading of the above section makes readily apparent that attempted murder is not included in the "attempt" crimes of section 9712. ⁵ Just as Spells successfully argued to the trial court that the maximum sentence for aggravated assault must be limited by the maximum sentence of attempted murder (an allegedly greater offense), ⁶ she now argues it is constitutionally impermissible to impose a mandatory minimum sentence upon her for aggravated assault when attempted murder of the first degree (an allegedly greater offense) is not included in the list of crimes under section 9712, and is not, therefore, susceptible to receiving a mandatory minimum sentence. Spells concludes it is a violation of both her state and federal constitutional rights to sentence her to a mandatory minimum because, if convicted of a greater offense, she could receive any sentence as a minimum, including probation. For the reasons that follow, we are unpersuaded by Spells' argument and affirm her judgment of sentence.

We note again that Spells was only charged and convicted of aggravated assault. The essence of Spells' argument is that aggravated assault is a lesser included offense of attempted murder, a crime with which Spells was not charged. We need not address, therefore, this part of her argument. Assuming arguendo that aggravated assault is a lesser included offense of attempted murder, when only aggravated assault is charged it is considered in and of itself, because no offense within which it could be included or into which it may merge exists. See Sutton v. Maryland, 886 F.2d 708 (4th Cir.1989), cert. denied, 494 U.S. 1036, 110 S.Ct. 1493, 108 L.Ed.2d 628 (1990) (when only common law assault is charged, it stands alone and is not a lesser included offense because there is no other offense into which it may merge). Thus, we forgo a lesser included offense analysis. The issue becomes then whether the sentence she received for aggravated assault violates one or more of her state and federal constitutional rights. We shall discuss each alleged violation separately.

Spells first characterizes as cruel and unusual punishment her sentence of a mandatory minimum for the aggravated assault charge when the "more serious" crime of attempted murder has no minimum, so, theoretically, a defendant convicted of that charge could receive probation. We initially note that, contrary to Spells' contention, the guarantee against cruel punishment contained in the Pennsylvania Constitution, Article 1, Section 13, provides no broader protections against cruel and unusual punishment than those extended under the Eighth Amendment to the United States Constitution. ⁷ Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied sub nom. Zettlemoyer v. Pennsylvania, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh'g. denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452; Commonwealth v. Strunk, 400 Pa.Super. 25, 582 A.2d 1326 (1990), alloc. denied, 528 Pa. 630, 598 A.2d 283 (1991).

We also note that Spells' argument does not properly present a constitutional challenge on the basis of cruel and unusual punishment. Spells relies on the United States Supreme Court's decision in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), for the proposition that all sentences are to be proportionate to the crime of which a defendant is convicted. This proposition does not reflect the holding of Solem and misrepresents the current state of proportionality jurisprudence as contained within the Eighth Amendment to the Constitution. In Solem, a sharply divided court affirmed the decision of the circuit court. The circuit court had found that a life sentence without possibility of parole imposed under a recidivist statute upon a man, following a seventh felony conviction, was violative of the federal guarantees against cruel and unusual punishment. Justice Powell, in an opinion joined by four other justices, indicated three objective criteria which could be examined to determine if a sentence is proportional to the crime committed:

In sum, a court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.

Solem, 463 U.S. at 292, 103 S.Ct. at 3010.

Spells correctly identifies these three objective criteria. However, while she argues that the first two criteria are the most critical, Spells completely fails to apply the first criterion to the facts of her case, apart from one sentence in which she raises her "merger" claim. This omission is understandable in light of the fact that the mandatory minimum provision of section 9712 has been repeatedly attacked as violating different constitutional rights and yet has been repeatedly upheld. See, e.g., Commonwealth v. Ehrsam, 355 Pa.Super. 40, 512 A.2d 1199 (1986), alloc. denied, 515 Pa. 573, 527 A.2d 535 (1987), cert. denied, 493 U.S. 932, 110 S.Ct. 321, 107 L.Ed.2d 311 (1989) (section 9712 does not violate the prohibition against cruel and unusual punishment); Commonwealth v. Irving, 347 Pa.Super. 349, 500 A.2d 868 (198...