Appeal from order of Superior Court, Oct. T., 1970, No. 1782, affirming judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1970, No. 1253, in case of Commonwealth of Pennsylvania v. John Nelson.
John W. Packel, Assistant Defender, with him Jonathan Miller, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Milton M. Stein, Assistant District Attorney, with him Norris E. Gelman, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Nix filed a concurring and dissenting opinion. Concurring and Dissenting Opinion by Mr. Justice Nix.
The appellant, John Nelson, after a trial before a judge sitting without a jury was found guilty of all counts included in three criminal indictments. The first
indictment, No. 1251, included a single count of burglary; the second, No. 1252, included a single count of loitering and prowling; and the third, No. 1253, included three counts: (a) assault and battery; (b) assault and battery in resisting arrest; and (c) unlawfully resisting an officer in making an arrest. After post trial motions were denied, a prison sentence of two to five years was imposed on indictment No. 1251; sentence was suspended on indictment No. 1252; and a prison sentence of eighteen months to three years was imposed on indictment No. 1253, to run concurrently with the sentence imposed on indictment No. 1251. On appeal the Superior Court affirmed the judgments by a unanimous per curiam order. We granted allocatur.
The validity of Nelson's conviction of burglary (indictment No. 1251) and the legality of the sentence imposed thereon is not challenged. The assignments of error concern only the conviction and sentence imposed on indictment No. 1253 (assault and battery, etc.).
As noted before, indictment No. 1253 included three counts: (a) assault and battery; (b) assault and battery in resisting arrest; and (c) unlawfully resisting an officer in making an arrest. Since the maximum prison sentence permitted for simple assault and battery is two years*fn1 and the court imposed a maximum prison sentence of three years on this indictment, it is obvious sentence was imposed on more than the assault and battery count in the indictments. It is argued this was error because counts (b) and (c) merged as a matter of law with count (a) in the indictment, and sentence may not legally be imposed on these additional offenses.*fn2 With this we agree.
If one crime necessarily involves another the two offenses merge. See Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941). See also Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343 (1953), and Commonwealth v. McCusker, 363 Pa. 450, 70 A.2d 273 (1950). This is such a case. Under the instant facts, the assault and battery necessarily involved the act of resisting arrest, and the act of resisting an officer in making the arrest; hence, the offenses merged. After the assault and battery was established, no additional facts were required to prove the two additional offenses. This is clear from the pertinent statute, the Act of June 24, 1939, P. L. 872, § 314, 18 P.S. § 4314, defining the crime of obstructing an officer in the execution of process. It is as follows: "Whoever knowingly, wilfully and forcibly obstructs, resists or opposes any officer or other person duly authorized, in serving or attempting to serve or execute any legal process or order, or in making a lawful arrest without warrant, or assaults or beats any officer or person, duly authorized, in serving or executing any such legal process or order or for and because of having served or executed the same; or in making a lawful arrest without warrant; or rescues another in legal custody; or whoever being required by any officer, neglects or refuses to assist him in the ...