No. 683 Pittsburgh, 1983, Appeal from the Judgment of Sentence of May 5, 1983 in the Court of Common Pleas of Mercer County Criminal Division, No. 552 Criminal 1981
Robert G. Yeatts, Assistant Public Defender, Mercer, for appellant.
James P. Epstein, Assistant District Attorney, Mercer, for Commonwealth, appellee.
Cirillo, Tamilia and Montgomery, JJ.
[ 341 Pa. Super. Page 264]
Appellant was convicted by a jury of rape,*fn1 incest,*fn2 indecent assault,*fn3 and simple assault,*fn4 arising from a series of sexual assaults of his natural daughter. Post trial motions were timely filed and denied on May 3, 1983. Appellant was sentenced concurrently to 4 to 15 years for the rape conviction, 2 1/2 to 5 years for the incest conviction and 1 to 2 years on the indecent assault conviction. Appellant filed a motion to modify sentence on the grounds that the rape and incest offenses merge for sentencing purposes.*fn5 This motion was denied on June 1, 1983, and the instant appeal followed. We affirm.
[ 341 Pa. Super. Page 265]
Appellant first contends that the lower court erred in imposing concurrent sentences for the offenses of rape and incest since both offenses arose out of a single act. Specifically, appellant contends that applying the "same transaction" test of Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981), the crimes of rape and incest must merge for sentencing purposes as they arose from a single act of intercourse. In support of this claim, appellant cites several cases where the offense of rape was deemed to have merged with other criminal offenses, such as indecent assault and statutory rape. See, e.g., Commonwealth v. Bryant, 247 Pa. Super. 460, 372 A.2d 917 (1977); Commonwealth v. Usher, 246 Pa. Super. 602, 371 A.2d 995 (1977). However, these cases can be distinguished from the matter before us as none of them specifically involve the merger of the crimes of rape and incest.
The test for determining whether one offense merges into another for purposes of sentencing is whether one crime necessarily involves the other. In order for one crime to necessarily involves the other, the essential elements of one must also be the essential elements of the other. (citations omitted)
Commonwealth v. Williams, 290 Pa. Super. 209, 215, 434 A.2d 717, 720 (1981). See also Commonwealth v. McCusker, 363 Pa. 450, 70 A.2d 273 (1950); Commonwealth ex rel. Mosczcynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941). Therefore, where one statutory provision requires proof of a fact which another does not, an act which is a violation of both provisions will constitute two separate offenses which do not merge. Commonwealth v. Tarver, 493 Pa. 320, 325, 426 A.2d 569, 572 (1981), quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932). See also Commonwealth v. Staples, 324 Pa. Super. 296, 471 A.2d 847 (1984).
While our appellate courts have adopted the so-called "Blockburger" test for ascertaining legislative intent in merger/double jeopardy cases, this test is less than perfect.
[ 341 Pa. Super. Page 266]
Although the Blockburger test is simply stated, it is subject to more than one interpretation, depending on the statutes involved. When one of the two statutes involved is a necessarily lesser included offense of the other, application of the Blockburger test will always raise the presumption that the two statutes involve the 'same offense.' Problems arise, however, when one statute is not a lesser included offense of the other.
People v. Robideau, 419 Mich. 458, 471, 355 N.W.2d 592, 597 (1984) (abandoning Blockburger test and returning to "traditional" means of determining legislative intent). Since Blockburger has been adopted by our Supreme Court, we are bound to apply it to this case. However, we are cognizant of its limitations and mindful that the polestar of our analysis is to ascertain the legislative intent of the statutes at issue.
Applying this standard to the situation before us, we note that the crime of incest is defined in 18 ...