Com. v. Williams
| Decision Date | 18 November 1987 |
| Docket Number | No. 1387,1387 |
| Citation | 534 A.2d 101,368 Pa.Super. 315 |
| Parties | COMMONWEALTH of Pennsylvania v. Leon WILLIAMS, Appellant. Pitts. 1986. |
| Court | Pennsylvania Superior Court |
Bruce L. Getsinger, Erie, for appellant.
Michael R. Cauley, Asst. Dist. Atty., Erie, for Com., appellee.
Before WIEAND, KELLY and POPOVICH, JJ.
Appellant, Leon Williams, appeals from judgment of sentence imposed following his conviction of aggravated assault, criminal attempt (robbery) and unlawful restraint. We affirm the convictions, vacate judgment of sentence and remand for resentencing on the aggravated assault and criminal attempt (robbery) convictions consistent with this opinion.
On May 30, 1986, at approximately six o'clock in the morning, sixty-one year old Mrs. Helen Bohun was walking her dog. At the corner of Eighth Street and Pennsylvania Avenue in Erie, Pennsylvania, Mrs. Bohun was attacked by appellant, who grabbed his victim from behind, threw her to the ground, beat her, and attempted to rob her. The victim struggled and screamed for help. Neighbors came to her assistance; appellant fled but was apprehended a short time later. Appellant was positively identified by Mrs. Bohun who had suffered: a broken nose; a fractured skull; a fractured foot; black eyes; various cuts, bruises, and abrasions; and psychological trauma. In a written statement, appellant confessed that he had attempted to rob Mrs. Bohun in order to get some money to buy alcohol.
On July 25, 1986, following an extensive guilty plea colloquy and execution of a written waiver form which also advised appellant of his rights, appellant entered a guilty plea to charges of aggravated assault, criminal attempt (robbery), and unlawful restraint. The plea was accepted by the trial court. On September 5, 1986, appellant was sentenced to consecutive terms of imprisonment of five to ten years on the aggravated assault conviction, one and one-half to ten years on the criminal attempt (robbery) conviction and one and one-half to five years on the unlawful restraint conviction. Thus, appellant was sentenced to an aggregate term of eight to twenty-five years imprisonment. Appellant was also ordered to pay costs and directed to make restitution in the amount of one thousand one hundred sixty dollars and ten cents ($1,160.10), plus any future medical bills incurred by Mrs. Bohun as a result of treatment for her injuries. A motion to reconsider sentence was filed and denied. This timely appeal is now properly before this Court for disposition.
On appeal, appellant contends that: the consecutive sentences imposed are illegal in that the offenses merged for sentencing purposes; the sentencing court stated inadequate reasons for the sentence imposed, failed to consider mitigating factors, considered improper aggravating factors, and imposed an excessive sentence; and counsel was ineffective in failing to seek recusal of all the Erie County Judges based upon the fact that the victim was the mother of a deputy clerk in the Erie County Clerk of Courts office. We shall discuss these contentions, seriatim.
Appellant first contends that the consecutive sentences imposed are illegal because the offenses merge for sentencing purposes. Appellant argues that each of the offenses arise out of a single criminal transaction; specifically, that appellant grabbed the victim, threw her to the ground, beat her, and attempted to rob her. The Commonwealth responds that the offenses do not merge because each of the offenses vindicates a substantially different interest. We find that the aggravated assault and criminal attempt convictions do not merge for sentencing purposes, but that the unlawful restraint conviction does merge with the aggravated assault and criminal attempt (robbery) convictions.
Recent decisions of this Court and our Supreme Court have fully and cogently expounded the nature and limits of the merger doctrine as it applies in Pennsylvania. See Commonwealth v. Williams, 514 Pa. 124, 522 A.2d 1095 (1987); Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986); Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986); Commonwealth v. Taylor, 362 Pa.Super. 408, 524 A.2d 942 (1987); Commonwealth v. Williams, 353 Pa.Super. 207, 509 A.2d 409 (1986); Commonwealth v. Sparks, 351 Pa.Super. 320, 505 A.2d 1002 (1986); Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986); Commonwealth v. Adams, 350 Pa.Super. 506, 504 A.2d 1264 (1986); see also Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985) (). It suffices for our purposes to summarize that the merger doctrine is limited to situations when each offense arises from the same criminal act or episode and each offense "necessarily involves" the other offense such that proof of the same acts is required to prove each crime; but, even when the offenses necessarily involve one another, they do not merge if the separate offenses vindicate substantially different interests.
To determine whether separate offenses arising from a single act involve substantially different interests, both the language of the particular statutes and the context in which the statutes appear in the Crimes Code must be considered. See Commonwealth v. Sparks, supra, 505 A.2d at 1004; see also Commonwealth v. Williams, supra, 522 A.2d at 1100-01; Commonwealth v. Taylor, supra, 524 A.2d at 947; Commonwealth v. Williams, supra, 496 A.2d at 41-42. Moreover, the merger doctrine is not to be mechanically applied; rather, the question of whether the merger doctrine applies should be approached with a heavy dose of common sense. See Commonwealth v. Taylor, supra, 524 A.2d at 947-48. "The question of merger will often turn on an appraisal of the precise facts of the case." Commonwealth v. Taylor, supra, 524 A.2d at 947, quoting Commonwealth v. Williams, supra, 496 A.2d at 50.
Appellant argues that under Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981), the aggravated assault and criminal attempt (robbery) convictions merge for sentencing purposes. The Commonwealth responds that Commonwealth v. Ayala, supra, does not control and that the convictions vindicate substantially different interests. We agree with the Commonwealth.
Initially, we note that appellant's reliance on Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981), is misplaced. In Ayala, our Supreme Court held:
... a conviction for aggravated assault where only one victim is involved, as here, will merge with a conviction for attempt to commit robbery for purposes of sentencing. Under the present facts, the act of criminal attempt to commit robbery necessarily involved the act of aggravated assault.
424 A.2d at 1262. On its face, Commonwealth v. Ayala, supra, appears to control; however, the second prong of the current merger test--whether substantially different interests are protected by the statutes--was not adopted by our Supreme Court until after Commonwealth v. Ayala, supra, was decided. See Commonwealth v. Sayko, supra, 515 A.2d at 897. Consequently, Commonwealth v. Ayala, supra, did not address and does not control resolution of the merger issue under the current merger test.
The issue of whether an aggravated assault conviction merges into a robbery conviction was considered more recently in Commonwealth v. Adams, supra, wherein four Judges of a divided en banc panel reasoned:
Based on these facts, it appears that only one physical act was committed: appellant shot the bartender while trying to rob the bar. In Commonwealth v. Ayala, 492 Pa. 418, 421, 424 A.2d 1260, 1262 (1981), the Supreme Court stated that 'a conviction for aggravated assault where only one victim is involved ... will merge with a conviction for criminal attempt to commit robbery for purposes of sentencing.' Similarly, the aggravated assault would also merge with the completed crime of robbery where there is only one victim. See, Commonwealth v. Nelson, 337 Pa.Super. 292, 486 A.2d 1340 (1984).
It is also clear from the statutory language and the necessary elements of the aggravated assault and robbery offenses that the harm against which the legislature intended to protect by enacting the aggravated assault statute is part of the same harm against which the robbery statute is intended to protect: the infliction of bodily injury. See 18 Pa.C.S. §§ 2702(a)(1) and 3701(a)(1)(i)-(v). Although the elements of the crime of robbery and aggravated assault are not identical, those for the crime of robbery suggest that the purpose of the robbery statute is not only to protect private property interests, but also to protect against the infliction of bodily injury when one's property interest is being jeopardized. Because the only harm against which the crime of aggravated assault protects is actual or threatened physical bodily injury, and because this is one of the harms against which the robbery statute protects, the aggravated assault statute protects against the same harm as the robbery statute. Appellant's commission of both an aggravated assault and a robbery caused only one harm to the Commonwealth in this case and therefore the two crimes merged. Thus, appellant correctly argues that the two crimes merged for purposes of sentencing.
We do not find the reasoning expressed in Commonwealth v. Adams, supra, controlling in the instant case. 1 In Commonwealth v. Taylor, supra, a panel of this Court reasoned:
We agree with the court in Commonwealth v. Adams, id. at 516, 504 A.2d at 1270, that the harm against which the Legislature intended to protect by enacting the aggravated assault statute is part of the same harm against which the robbery statute is intended to protect, i.e. protection against infliction of bodily injury. However, we also recognize that the robbery statute more specifically intends...
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