Commonwealth v. Gatling

Citation807 A.2d 890,570 Pa. 34
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Earnest GATLING, Appellee.
Decision Date01 October 2002
CourtUnited States State Supreme Court of Pennsylvania

Catherine Lynn Marshall, Philadelphia, for Com.

John P. Cotter, Philadelphia, for Earnest Gatling.

Peter Rosalsky, Philadelphia, for Defender Ass'n of Philadelphia, amicus curiae.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Justice NEWMAN.

The Commonwealth of Pennsylvania (Commonwealth) appeals from an Order of the Superior Court that vacated the Judgment of Sentence imposed by the Court of Common Pleas of Philadelphia County (trial court) on Ernest Gatling (Gatling) for his convictions of indecent assault, statutory sexual assault, and two counts of corruption of a minor. The Superior Court concluded that the trial court erred in failing to merge one of the corruption of a minor convictions with the statutory sexual assault charge. For the reasons set forth herein, we reverse the Order of the Superior Court and reinstate the sentence imposed by the trial court.

FACTS AND PROCEDURAL HISTORY

During September and October of 1996, Gatling was a guest in the family home of J.N., the victim, who was eleven (11) years old at the time. Gatling, a friend of J.N.'s mother, grandmother, and uncle, lived in the basement of the house. At some time in September of 1996, Gatling, then twenty-seven (27) years of age, summoned J.N. to the basement, told the child to lie face down on the couch, climbed on top of her, and while both were still clothed, Gatling began pushing with his penis against her buttocks. After approximately four or five minutes, Gatling got up and J.N. climbed back upstairs; J.N. did not tell anyone what had happened.

A few weeks later, in mid-October 1996, Gatling again called J.N. into the basement. He once more told the girl to lie face down on the couch, whereupon he climbed on top of her, while both were clothed, and again began pushing with his penis against her buttocks. However, this time, Gatling told J.N. to turn over, at which point he pulled down her pants, then his own, and proceeded to engage in sexual intercourse with her. When again Gatling had finished, J.N. went back upstairs and told no one. A few days later, J.N.'s teacher found a note on the floor of the classroom that J.N. had written to Gatling. The teacher spoke to J.N. and informed the school principal, who contacted the family of J.N. and the police. The police brought J.N. to St. Christopher's Hospital for Children, where a pelvic exam revealed tears in and beyond J.N.'s hymen, which are consistent with vaginal penetration.

Based on the above evidence, a jury found Gatling guilty of indecent assault1 and corruption of a minor2 with regard to the September incident and guilty of statutory sexual assault3 and corruption of a minor with regard to the mid-October incident. The jury acquitted Gatling of rape,4 two counts of endangering the welfare of children,5 and an additional count of indecent assault.6 The court sentenced Gatling to twenty-one (21) to forty-two (42) months imprisonment for statutory sexual assault consecutive to a term of six (6) to twelve (12) months imprisonment on the corruption of a minor conviction.7 (Notes of Testimony (N.T.) 1/16/98, page 34). The court suspended sentencing on the indecent assault conviction arising from the September incident. (N.T. 1/16/98, page 37). Accordingly, the trial court imposed an aggregate sentence of twenty-seven (27) to fifty-four (54) months.8

Gatling appealed to the Superior Court, which consolidated his appeal with Commonwealth v. Smith, No. 477 PHL 1998, to address whether the crimes of statutory sexual assault and corruption of a minor merge for sentencing purposes. In a published, en banc Opinion, the Superior Court vacated the Judgment of Sentence imposed by the trial court on Gatling and remanded the matter for re-sentencing. Commonwealth v. Smith, 772 A.2d 75 (Pa.Super.2001) (en banc), petition for allowance of appeal granted in part sub nom. Commonwealth v. Gaitling, 566 Pa. 238, 780 A.2d 605 (2001)

. The Superior Court majority held that "[t]he crimes of statutory sexual assault and corruption of a minor by their elements are not greater and lesser included offenses and, thus, convictions of both of these crimes do not necessarily merge for sentencing purposes... however, the facts underlying [Gatling's] conviction mandate the conclusion that these particular sentences must merge." Id. at 84. The Superior Court majority reasoned that Gatling committed a single criminal act; the majority found that the elements of corruption of a minor, under the facts in the present case, were subsumed within the elements of statutory sexual assault and that "neither offense requires proof which the other does not." Id. at 81 (quoting Commonwealth v. Comer, 552 Pa. 527, 716 A.2d 593, 599 (1998)).

Judge Joyce filed a Concurring Opinion in which he argued that the crimes of statutory sexual assault and corruption of a minor should merge as a matter of law because they are greater and lesser-included offenses. Judge Joyce reasoned that "[s]tatutory sexual assault requires that [the defendant] engage in sexual intercourse with a minor less than sixteen. Corruption of a minor requires that [the defendant] engage in sexual intercourse that corrupted or tended to corrupt a minor under the age of eighteen." Smith, 772 A.2d at 85 (Joyce, J., dissenting). President Judge Del Sole filed a Concurring and Dissenting Opinion, joined by Judges Hudock, Stevens, and Orie Melvin, in which he posited that the mid-October episode consisted of two separate criminal acts, rendering merger analysis inapposite because the guilty verdicts for the two crimes were based on separate and distinct facts.

We granted allocatur to discuss whether the crimes of statutory sexual assault and corruption of a minor should merge in the case sub judice and specifically, "whether merger was precluded for the purpose of avoiding a `volume discount' for multiple criminal acts under this Court's decision in Commonwealth v. Belsar, 544 Pa. 346, 676 A.2d 632 (1996)." Commonwealth v. Gaitling, 566 Pa. 238, 780 A.2d 605 (2001).

DISCUSSION

The doctrine of merger in Pennsylvania has its genesis in the decision of this Court in Harman v. Commonwealth, 12 Serg. & Rawle 69, 1824 WL 2417 (Pa.1824). In that case, the Commonwealth charged the defendant with both rape and assault with intent to ravish; the court found the defendant guilty, generally. The court sentenced the defendant for rape only. The defendant appealed, alleging, inter alia, that the trial court erred in joining the misdemeanor assault charge with the felony rape indictment; at the time, joinder of a felony with a misdemeanor was illegal. We rejected this argument, reasoning as follows:

The defendant was found guilty of rape, and received the judgment which the law has ordained for that offence. He was subject to no inconvenience or hardship on his trial; being charged with felony, he was admitted to his privilege of peremptory challenge. There could be no surprise on him, nor any difficulty in defending himself against both charges. Indeed, if he was guilty of the rape, he must have been guilty of the assault, with intent to ravish; and if he was not guilty of the assault, with the intent to ravish, he could not be guilty of the rape: so that when he prepared for defence against one event, he must necessarily prepare for defence against the other. It would have been unjust, however, to punish him for the assault, which was merged in the greater offence of rape, and therefore, he was not punished for it.

Harman, 1824 WL 2417 at *4 (emphasis added). The merger doctrine developed to prevent punishing a defendant more than once for one criminal act. See Commonwealth v. Brown, 346 Pa. 192, 29 A.2d 793, 796 (1943) (to hold that a defendant can be subject to prosecution under different penal provisions for the same act "is to eschew the ideal of precision in criminal law and criminal penalties").

In the case at bar, the Commonwealth contends that the Superior Court erred in merging the convictions of statutory sexual assault and corruption of a minor. The Commonwealth relies on Belsar for the proposition that a court should not merge sentences where such action would provide the criminal defendant with a "volume discount" on crime. Accord Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20, 22 (1994),

modified, 539 Pa. 476, 653 A.2d 615 (1994) ("If multiple acts of criminal violence were regarded as part of one larger criminal transaction or encounter which is punishable only as one crime, then there would be no legally recognized difference between a criminal who robs someone at gunpoint and a criminal who robs the person and during the same transaction or encounter pistol whips him in order to effect the robbery"). The Commonwealth submits that, in the case sub judice, merging the crimes for which the jury convicted Gatling arising from the mid-October 1996 events, gives Gatling a volume discount for criminal acts that exceeded a solitary offense, even if the elements of the offenses could otherwise merge. Gatling counters that the occurrence of mid-October constituted one criminal act, for which he can be convicted of only one crime.

"Generally, 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." Commonwealth v. Collins, 564 Pa. 144, 764 A.2d 1056, 1057 (2001). In 1989, we attempted to reconstruct our merger doctrine in the cases of Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989), and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989). In Leon Williams, the defendant grabbed a woman from behind, choked her, threw her to the ground, beat her, and attempted to rob her. A...

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