Commonwealth v. Jenkins

• Decision Date: 15 July 2014
• Citation: 2014 PA Super 148,96 A.3d 1055
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Joseph Anthony JENKINS, Appellant.
• Court: Pennsylvania Superior Court

96 A.3d 1055

2014 PA Super 148

COMMONWEALTH of Pennsylvania, Appellee

v.Joseph Anthony JENKINS, Appellant.

Superior Court of Pennsylvania.

Submitted May 12, 2014.

Filed July 15, 2014.

David R. Crowley, Public Defender, Bellefonte, for appellant.

Daniel C. McKenrick, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.

BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J.^*

OPINION BY WECHT, J.:

Joseph Anthony Jenkins appeals his July 11, 2013 judgment of sentence. We affirm.

The trial court has summarized the factual and procedural history of this case as follows:

[Jenkins] and his co-defendant, Zachariah Johnson [ (collectively, “Defendants”) ], were charged with Robbery, Conspiracy, and Simple Assault for an incident that occurred on July 9, 2011[,] outside of the Parkway Plaza Apartments [in State College, Pennsylvania.] Defendants approached Anthony Caracillo while he was urinating by a dumpster behind the apartment complex and asked him for money to buy more beer for the party that they had all been attending. Mr Caracillo gave one of the [D]efendants a dollar, and then walked past them. Defendants then attacked Mr. Caracillo and stole possessions off of his person, ultimately leaving him injured, bloodied, and with a broken jaw.

A jury trial was held on May 21, 2013. [Jenkins] was found guilty of Robbery—Bodily Injury, 18 Pa.C.S. § 3701(a)(1)(iv), 18 Pa.C.S. § 306; Criminal Conspiracy, Robbery—Bodily Injury, 18 Pa.C.S. § 3701(a)(1)(iv), 18 Pa.C.S. § 903(a)(1); and Simple Assault, 18 Pa.C.S. § 2701(a)(1), 18 Pa.C.S. § 306(a). [Jenkins] was sentenced on July 2, 2013, to a total sentence of 3 1/2 to 7 years in a State Correctional Facility. [On July 12, 2013, Jenkins] filed [a] Post–Sentence Motion arguing that Simple Assault merges with Robbery [and] that this Court therefore erred in imposing a separate sentence on that charge.

Trial Court Opinion (“T.C.O.”), 10/10/2013, at 1–2. On October 10, 2013, the trial court filed an opinion and order denying Jenkins' motion.

On November 5, 2013, Jenkins filed a timely notice of appeal. On November 6, 2013, the trial court directed Jenkins to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On November 20, 2013, Jenkins filed a timely Rule 1925(b) statement. On November 26, 2013, the trial court filed its Rule 1925(a) opinion, which responded to Jenkins' allegation of error by referring to the reasoning previously stated in the court's October 10, 2013 opinion.

Jenkins has raised a single issue for our consideration: “Did the lower court err when it imposed an illegal sentence by failing to merge the offenses of robbery and simple assault?” Jenkins' Brief at 8.

Whether Jenkins' convictions merge for the purposes of sentencing is a question implicating the legality of his sentence. As such, our standard of review is de novo and the scope of our review is plenary.¹Commonwealth v. Collins, 564 Pa. 144, 764 A.2d 1056, 1057 n. 1 (2001).

Section 9765 of the Pennsylvania Sentencing Code provides as follows regarding the merger of crimes for sentencing purposes:

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.

42 Pa.C.S. § 9765. Accordingly, merger is appropriate only when two distinct criteria are satisfied: (1) the crimes arise from a single criminal act; and (2) all of the statutory elements of one of the offenses are included within the statutory elements of the other. Id.

Despite the above codification of Pennsylvania merger doctrine, Pennsylvania courts historically have struggled to articulate and apply the proper test for merger claims. In Commonwealth v. Jones, our Supreme Court addressed the issue of merger pursuant to section 9765, but was unable to establish a consensus approach. 590 Pa. 356, 912 A.2d 815 (2006) (plurality); see Commonwealth v. Williams, 920 A.2d 887, 889 (Pa.Super.2007) (noting that “ Jones generated a ‘lead opinion’ approach to merger and a ‘dissenting opinion’ approach to merger”). In the lead plurality opinion in Jones, Justice Castille (now Chief Justice) adopted a “practical, hybrid approach” that required courts to “evaluate the statutory elements [of each crime], with an eye to the specific allegations leveled in the case.” 912 A.2d at 822. Justice Newman wrote a dissent favoring the adoption of a strict statutory test in accordance with section 9765. Id. at 827 (Newman, J., dissenting) (“[T]he elements of these two crimes differ, and sentencing thus cannot be merged pursuant to our jurisprudence and the legislative intent as evidenced by 42 Pa.C.S. § 9765.”).

One year after Jones, a panel of this Court addressed the merger doctrine in Williams. Therein, this Court adopted Justice Newman's approach as more accurately reflective of our merger doctrine jurisprudence and the legislative intent of section 9765. Id. at 891. Likewise, the Pennsylvania Supreme Court since has rejected the “practical, hybrid approach” of the Jones plurality and held that the statutory language precludes courts from merging sentences when each offense contains a statutory element that the other does not. Commonwealth v. Baldwin, 604 Pa. 34, 985 A.2d 830, 834 (2009).

Prior to the implementation of section 9765, it appears that, under Pennsylvania common law, separate convictions for robbery and simple assault generally merged for sentencing purposes. See Commonwealth v. Gilliam, 302 Pa.Super. 50, 448 A.2d 89, 90 n. 1 (1982) (citing Commonwealth v. Bryant, 282 Pa.Super. 600, 423 A.2d 407 (1980)). In fact, there are several cases indicating that “lesser” offenses, which are statutorily subsumed by robbery, merged for sentencing purposes. See Commonwealth v. Welch, 291 Pa.Super. 1, 435 A.2d 189, 190 (1981) (“[A] conviction for simple assault merges with a conviction for robbery for purposes of sentencing. After the crime of robbery is established no additional facts [are] necessary to prove simple assault.”); Commonwealth v. Brazzle, 272 Pa.Super. 438, 416 A.2d 536, 538–39 (1979) (holding that a theft charge merged with a robbery charge for sentencing because “theft is a necessary ingredient of robbery”); Commonwealth v. Guenzer, 255 Pa.Super. 587, 389 A.2d 133, 135–36 (1978) (holding that “a conviction for simple assault merges with a robbery conviction under 18 [Pa.C.S. §] 3701(a)(1)(ii)”).

This line of cases predates our current statutory and case law approach to merger by approximately two decades. Furthermore, these cases do not apply a uniform test in concluding that a conviction for simple assault merges with a conviction for robbery. In Guenzer, this Court held that a conviction for robbery pursuant to subsection 3701(a)(1)(ii) merged with a simple assault conviction automatically, without examining the statutory or factual bases of the underlying convictions. Id. In Brazzle, we stated that a conviction for theft merged with a robbery conviction based upon a significantly different legal rationale: “The general rule is that when one crime is a necessary ingredient of another the offenses merge for the purposes of sentencing and, thus, only one punishment may be imposed.” 416 A.2d at 538. Our approach to merger in Brazzle was statutorily intensive, and focused upon the fact that a conviction for robbery requires the perpetrator to commit a theft as a necessary element of the crime. Id. at 538–39. Conversely, in Welch, we conducted a fact-specific inquiry, and concluded that convictions for robbery and simple assault merged in that case because “[a]fter the crime of robbery was established[,] no additional facts were necessary to prove simple assault.” 435 A.2d at 189–90. In Gilliam, as in Guenzer, this Court suggested that convictions for simple assault always merge with convictions for robbery. 448 A.2d at 90 n. 1.

Our reading of these cases has revealed no consistent approach to the question of merger regarding robbery and simple assault. The only holding that cites a specific standard is Welch, which relied upon our Supreme Court's holding in Com. ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941), as providing the relevant standard for merger:

The true test of whether one criminal offense has merged in another is not (as is sometimes stated) whether the two criminal acts are “successive steps in the same transaction” but it is whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny. The “same transaction” test is valid only when “transaction” means a single act. When the “transaction” consists of two or more criminal acts, the fact that the two acts are “successive” does not require the conclusion that they have merged. Two crimes may be successive steps in one crime and therefore merge, as, e.g., larceny is merged in robbery, and assault and battery is merged in murder, or they may be two distinct crimes which do not merge.... When one of two criminal acts committed successively is not a necessary ingredient of the other, there may be a conviction and sentence for both.

Welch, 435 A.2d at 190 (quoting Ashe, 21 A.2d at 921 (emphasis in original)).

Assuming, arguendo, that the standard discussed in Welch and Ashe represented our legal standard of review at one time, the adoption of section 9765, as interpreted by Baldwin, has abrogated it:

[The Pennsylvania Supreme Court's] pre-[s]ection 9765 jurisprudence characterized the merger doctrine as, first and foremost, a rule of statutory construction. In Commonwealth v. Anderson , 650 A.2d 20 (Pa.1994), [the Court] wrote:

Generally, the doctrine of merger is a rule of statutory construction designed to determine whether the legislature intended for the punishment of one offense...