No. 438 January Term, 1978, Appeal from Order of the Superior Court at No. 789 October Term, 1977, Affirming Judgment of Sentence of the Court of Common Pleas, Criminal, of Luzerne County, at No. 1820 of 1976.
John J. Thomas, Asst. Public Defender, Luzerne, for appellant.
Chester B. Muroski, Dist. Atty., Joseph P. Giovannini, Jr., Asst. Dist. Atty., Luzerne, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., dissents.
Appellant, Herman John Ayala, pleaded guilty to criminal attempt to commit robbery and aggravated assault as a misdemeanor of the first degree on November 8, 1976. He was sentenced to consecutive terms of imprisonment of one-to-three years and two-to-four years, respectively. On appeal to the Superior Court of Pennsylvania he argued that the sentence did not comply with § 1357 of the Sentencing Code.*fn1 The Superior Court agreed with this argument, vacated the judgment of sentence and remanded the case for resentencing. Commonwealth v. Ayala, 258 Pa. Super. 583, 391 A.2d 673 (1978).
Appellant also argued in his appeal to Superior Court that the crime of criminal attempt to commit robbery in this case necessarily involved the crime of aggravated assault and that it was error for the trial court to impose separate consecutive sentences. The Superior Court affirmed the decision of the trial court on this issue and appellant filed a petition for allowance of appeal with this Court, which we granted. We now conclude that the trial court erred in sentencing appellant separately for each conviction.
The record reveals that the victim, an off-duty police officer, parked his automobile in the parking lot of a Luzerne County establishment, the Wyoming Eagles. Upon exiting his vehicle, he was approached by a young woman who requested, and received, a cigarette. The victim walked a short distance and was again approached by the same woman, this time requesting a cigarette for her friend. Again the victim complied with the request and again he walked away from her. A few seconds later he was approached by two men, appellant and an accomplice. The victim observed what he believed to be pipes in their hands,
although he later discovered that appellant actually had a masonry hammer in his grasp. As the victim tried to move away from the men appellant struck him on the left side of his head. They pursued him a short distance, rendering additional blows on the victim's shoulder and back of the neck. Finally, the victim identified himself as a police officer and reached back as if he had his gun. Appellant and his accomplice fled, leaving the victim bleeding profusely with severe lacerations requiring the victim's admittance to the hospital.
Appellant's argument that the trial court violated the doctrine of merger by sentencing separately and consecutively on the two charges to which appellant pleaded guilty is convincing. This court in Com. ex rel. Shaddock v. Ashe, 340 Pa. 286, 17 A.2d 190 (1940) stated that only one penalty may be imposed after conviction where the crimes charged arise from the same transaction and differ only in degree. In Com. ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941) we stated:
"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 ...