Com. v. Williams

• Decision Date: 01 October 1978
• Citation: 344 Pa.Super. 108,496 A.2d 31
• Parties: COMMONWEALTH of Pennsylvania v. Leon WILLIAMS, Appellant. 663
• Court: Pennsylvania Superior Court

Page 31

496 A.2d 31

344 Pa.Super. 108

COMMONWEALTH of Pennsylvania v. Leon WILLIAMS, Appellant.

663 Oct. Term, 1978

Superior Court of Pennsylvania.

Submitted Feb. 3, 1984.

Filed July 19, 1985.

Gerald T. Gervasi, Merion Station, for appellant.

Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Stuart Suss, Asst. Dist. Atty., West Chester, amicus curiae.

Before SPAETH, President Judge, and WICKERSHAM, BROSKY, CIRILLO, BECK, POPOVICH and HESTER, JJ.

CIRILLO, Judge:

This case was certified to the Court en banc to address problems arising under the doctrine of merger of offenses for sentencing.

I

Leon Williams was tried by jury and convicted of aggravated assault, possession of a prohibited offensive weapon, carrying a firearm on a public street in Philadelphia, and resisting arrest. The charges stemmed from an incident that occurred on an evening in February, 1976, in the City of Philadelphia. Officers Moriarity and Winchester of the Philadelphia Police Department were on highway patrol; near the intersection of Belmont and Westminster Avenues they spotted two men by a row of parked cars. One of the men had a suspicious large bulge under his jacket, so the officers got out of their car to investigate. Officer Winchester approached the man with the bulge, who turned out to be Michael Jefferson. The bulge turned out to be a fourteen-inch mallet. Officer Moriarity approached the other man, appellant Leon Williams, and asked to see identification. After showing the officer an ID card, Williams began to shake and tremble, then suddenly jumped back and crouched. Instinctively, Moriarity yelled out "He has a gun" and dove for cover. In the same instant a blast emanated from the sawed-off shotgun Williams had produced from under his clothing. The officers returned fire as Williams stood behind a nearby car pointing the shotgun at both officers and warning them to stay back or he would shoot. Williams then fled down the street with Moriarity in pursuit on foot and Winchester giving chase in the squad car. Moriarity had to take cover several times when Williams turned and waved the shotgun at him. Eventually Williams discarded the gun, ran into an abandoned housing complex, and disappeared.

About three days later, a New York policeman stopped an automobile driven by Williams headed north on a highway in upstate New York. The Philadelphia authorities, however, were unable to catch up with Williams until April of 1977, when he was brought back to stand trial on charges arising from the shotgun incident. After a jury found him guilty of the previously mentioned charges, Williams was sentenced in the Philadelphia Court of Common Pleas to consecutive, maximum prison terms for each offense.

II

Williams appealed to this Court, alleging that he

was unlawfully and duplicitously sentenced to consecutive maximum terms of imprisonment for assault, resisting arrest, possessing a prohibited offensive weapon, and carrying a firearm on a public street, since all of these convictions resulted from the single unlawful act of firing a sawed-off shotgun, and they thus merge for sentencing purposes.

Williams also alleged trial court error and ineffectiveness of trial counsel in relation to the following issues: 1) the sufficiency of the evidence to prove aggravated assault; 2) the prosecutor's injection of inflammatory statements and personal opinion into his closing argument; 3) the prosecutor's reference to non-record evidence of Williams's address; 4) the admission of hearsay to establish the direction in which the shotgun was fired; 5) the admission of hearsay testimony that Michael Jefferson told the police where Williams lived; and 6) the admission of evidence that Williams gave an alias to the New York policeman who stopped him three days after the incident, when the existence of this evidence had not been disclosed in response to the defendant's pre-trial discovery request.

A three-judge panel of this Court unanimously rejected all of appellant's claims save the sentencing merger issue. On that issue the panel held that for sentencing purposes resisting arrest merged with aggravated assault, and the two firearms offenses merged with each other. The panel vacated sentence on the charges of resisting arrest and carrying a firearm in Philadelphia. One judge dissented in part and would have held that none of the offenses merged.

We granted the Commonwealth's application for reargument limited to the merger issue. We have, however, reviewed each of appellant's remaining claims de novo, and found them not to warrant relief. On the merger issue, we now hold that the firearms and weapons offenses merge with each other for sentencing purposes, but that the aggravated assault and resisting arrest charges do not merge with each other, nor do they merge with the other violations.

The doctrine of merger is at best a confusing area of the law to approach. As Mr. Justice Pomeroy frankly admitted, speaking for the Supreme Court of Pennsylvania, "Our decisions on the doctrine of merger are not altogether harmonious." Commonwealth v. Sparrow, 471 Pa. 490, 503, 370 A.2d 712, 718 (1977). Superior Court decisions on sentencing merger exhibit little consistency in rationale of their own. The confusion surrounding merger stems in part from its dual origins in constitutional and common law. To curtail this trend of confusion, we strongly urge courts deciding sentencing merger issues in the future to keep both of these roots firmly in mind.

III

A

Constitutional limitations on multiple punishments

One of the guarantees found in the Double Jeopardy Clause of the United States Constitution is protection against more than one punishment for the "same offence." U.S. Const. amend. V; Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874). The Fifth Amendment proscription on multiple punishments for the same offense has of late been made binding on the State governments by virtue of the Fourteenth Amendment, U.S. Const. amend. XIV. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

Pennsylvania has its own constitutional provision making it unlawful for any person to be twice put in jeopardy for the "same offense." Pa. Const. art. 1, § 10. As our State Supreme Court recently reaffirmed, however, in the multiple punishments context the double jeopardy guarantee contained in Article 1, § 10 is coextensive with its counterpart in the Fifth Amendment. Commonwealth v. Goldhammer, --- Pa. ---, --- n. 4, 489 A.2d 1307, 1313 n. 4 (1985); accord, Commonwealth v. Bostic, 500 Pa. 345, 350-51 n. 4, 456 A.2d 1320, 1322 n. 4 (1983). Thus, in determining whether multiple punishments have been unconstitutionally inflicted for the same offense, our State courts simply apply the rules used to effectuate the Fifth Amendment guarantee against double jeopardy. See, e.g., Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981); Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981).

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), the Supreme Court set forth the definitive test for determining when conduct in violation of more than one statute must be treated as the "same offense" for double jeopardy purposes: "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." That is, more than one offense may be found and punished in any given act or transaction only where each offense requires proof of an element not contained in the other(s). Id.

The Blockburger "same offense" test is the same one that traditionally has been used to determine whether one offense is a "constituent" or "lesser included" offense of another. See Tarver, supra; see also Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); Commonwealth v. Pemberth, 339 Pa.Super. 428, 489 A.2d 235 (1985). The test depends solely on a comparison of the elements of the crimes charged, not on the similarity or even the identity of the evidence introduced at trial to establish their commission. See United States v. Woodward, 469 U.S. 105, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985); Commonwealth v. Maddox, 307 Pa.Super. 524, 453 A.2d 1010 (1982). Only when all the elements of one crime are also elements of the other may they be classified as the "same offense." See, e.g., Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); see and compare Black's Law Dictionary 812 (5th ed. 1979) ("Lesser included offense"); cf. also 18 Pa.C.S. § 109(1) (when prosecution barred by former prosecution for the same offense).

Although it is frequently overlooked, it cannot be overemphasized that the "same offense" test of double jeopardy does not prohibit cumulating punishments at a single trial for multiple statutory offenses simply because they all arise from the same act or transaction. Even a single, indivisible act may support more than one punishment under separate statutory provisions if each provision requires proof of a fact that the other does not. Thus, in Woodward, supra, a unanimous Supreme Court held that the defendant's solitary act of checking off the "no" box on a customs form supported double punishments for making a false statement to a federal agency and failing to report currency, because each statutory offense required proof of an element not contained in the other. See also Commonwealth v. Whelton, 319 Pa.Super. 42, 465 A.2d 1043 (1983) (single, undifferentiated act of possessing one gun supported two discrete sentences for separate firearms violations without offending double jeopardy). "Same offense" refers, in the strict sense, to a greater and its necessarily included lesser offense; one must involve the other not only in the factual context of...