Com. v. Williams, 96 MDA 2006.

• Court: Superior Court of Pennsylvania
• Writing for the Court: Lally
• Citation: 920 A.2d 887
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Brandon WILLIAMS, Appellant.
• Docket Number: No. 96 MDA 2006.,96 MDA 2006.
• Decision Date: 14 March 2007

920 A.2d 887 COMMONWEALTH of Pennsylvania, Appellee
v.
Brandon WILLIAMS, Appellant. No. 96 MDA 2006. Superior Court of Pennsylvania. Submitted January 9, 2007. Filed March 14, 2007.

[920 A.2d 888]

Gerald Wassil, Wilkes-Barre, for appellant.

David W. Lupas and Frank P. Barletta, Asst. Dist. Attys., Wilkes-Barre, for the Com., appellee.

BEFORE: LALLY-GREEN, PANELLA, JJ., and McEWEN, P.J.E.

OPINION BY LALLY-GREEN, J.:

¶ 1 Appellant, Brandon Williams, appeals from the judgment of sentence entered on November 18, 2005. We affirm.

¶ 2 The factual and procedural history of the case is as follows. On October 11, 2005, Appellant pled guilty to charges of possession with intent to deliver heroin, firearms possessed by a felon, and carrying a firearm without a license.¹ The charges arose out of an incident on March 30, 2005, when police approached Appellant as he was sitting in his vehicle. The police removed Appellant from the vehicle, conducted a pat-down search, and found heroin in Appellant's pocket. The police then noticed a handgun under the driver's seat of the vehicle. The first weapons charge arose from the fact that Appellant possessed the weapon while being a convicted felon. The second weapons charge arose from the fact that Appellant did not have a license to carry the weapon.

¶ 3 On November 18, 2005, the Honorable Peter Paul Olszewski, Jr., sentenced Appellant to a prison term of five to ten years for the drug charge, a consecutive term of two to four years for firearms possessed by a felon, and a consecutive term of one to two years for carrying a firearm without a license. Appellant filed a timely petition to modify the sentence, which was denied. This timely appeal followed.²

¶ 4 Appellant raises one issue on appeal:

Whether the trial court erred in not merging the defendant's sentences for firearms not to be carried without a license with the sentence for persons not to possess firearms?

Appellant's Brief at 4.

¶ 5 Appellant argues that his two firearms sentences should have merged. In essence, Appellant argues that he was illegally sentenced twice for the same criminal act of possessing a firearm without a license.

¶ 6 Appellant raises a non-waivable challenge to the legality of the sentence.³ Commonwealth v. Berry, 877 A.2d 479, 482 (Pa.Super.2005) (en banc), appeal denied, 917 A.2d 844, 2007 Pa. Lexis 92 (Pa.2007). "The issue before us is a question of law and, as such, our scope of review is plenary and our standard of review

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is de novo." Commonwealth v. Jones, 912 A.2d 815, 816 n. 2 (Pa.2006).

¶ 7 Preliminarily, we note that merger claims have their root in the Double Jeopardy Clause of the United States Constitution. Id. at 823. Moreover, in 2002, the Legislature passed a statute governing merger. It states:

No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.

Id. at 819 n. 6, quoting 42 Pa.C.S.A. § 9765 (effective February 7, 2003). That approach is substantially similar to the Supreme Court's decision in Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994).

¶ 8 In Jones, our Supreme Court issued its most recent pronouncement of the law in the complex area of merger. Jones discusses the interplay among double jeopardy principles, Supreme Court case law, and the 2002 statute. We note that Jones generated a "lead opinion" approach to merger and a "dissenting opinion" approach to merger. We will analyze Appellant's claim under both approaches.⁴ We begin with the lead opinion.

¶ 9 The lead opinion, by Justice Castille, examined several different approaches to merger and the complex history of merger law in Pennsylvania. The lead opinion ultimately adopted a "practical, hybrid approach" that requires courts to "evaluate the statutory elements [of each crime], with an eye to the specific allegations leveled in the case." Id. at 822. Under the lead opinion's approach, the key test is whether the defendant was charged and convicted on a single set of facts that satisfies both offenses. Id. at 824. If so, the offenses merge. Id.

¶ 10 The lead opinion quoted with approval the following principle:

[I]n a situation where the crimes, as statutorily defined, each have an element not included in the other but the same narrow fact satisfies both of the different elements, the lesser crime merges into the greater-inclusive offense for sentencing.

Id. at 821, quoting Commonwealth v. Gatling, 570 Pa. 34, 807 A.2d 890, 899 n. 9 (2002). The lead opinion reasoned that even though this Gatling footnote came from a plurality opinion, the concurring and dissenting Justices did not "take issue" with that particular footnote. Id.

¶ 11 In doing so, the lead opinion specifically rejected a strict "elements of the offense" approach to merger. In other words, the lead opinion rejected an abstract and theoretical approach that considers whether each crime contains an element

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that the other does not. Id. at 820-823.⁵

¶ 12 Thus, the lead opinion held that charges of criminal trespass and burglary merge for sentencing purposes under the facts of that case. The lead opinion noted that as a practical matter, the Commonwealth charged the defendant with "entering his neighbor's home without her consent to steal a substantial quantity of cash." Id. Those facts, as charged and proved at trial, constitute both criminal trespass and burglary; thus, the offenses merge. Id.

¶ 13 Under the lead opinion's approach, we can conclude that the two...