Appeal from the Judgment of Sentence on January 21, 1983 in the Court of Common Pleas of Chester County, Criminal Division, No. 611 of 1973
Albert P. Massey, Jr., Paoli, for appellant.
Stuart B. Suss, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Cirillo, Beck and Cercone, JJ.
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Appellant was convicted of arson endangering persons, arson endangering property, burglary, theft by unlawful taking, theft by receiving stolen property, criminal conspiracy and three counts of criminal attempt -- criminal homicide. The court sentenced appellant to ten (10) to twenty (20) years on the arson counts;*fn1 five (5) to ten (10) years on the burglary conviction, and five (5) to ten (10) years on each of the three attempt counts. All sentences were to run consecutively for an aggregate term of thirty (30) to sixty (60) years. Sentence was suspended upon the theft by unlawful taking and conspiracy counts. The court found that receiving stolen property merged with the other theft count. Appellant then perfected this appeal.*fn2
On appeal, appellant raises three contentions, each challenging in some way the legality of the multiple sentences imposed. Appellant's first argument is that his convictions for Arson Endangering Persons merged, for sentencing purposes, with his three convictions for Criminal
[ 343 Pa. Super. Page 283]
Attempt (Criminal Homicide). The merger question has always been a difficult one to resolve. The test for determining whether one offense merges with another for sentencing purposes was initially outlined in the Pennsylvania Supreme Court case Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 104-5, 21 A.2d 920, 921 (1941):
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 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. (Emphasis in original).
In order for one crime to necessarily involve the other, the essential elements of one must also be the essential elements of the other. Commonwealth v. Williams, 290 Pa. Super. 209, 434 A.2d 717 (1981). See also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). We must, then, examine the statutory elements of the crimes involved. Arson Endangering Persons, a felony of the first degree, occurs when a person "intentionally starts a fire or causes an explosion, whether on his own property or that of another, and thereby recklessly places another person in danger of death or bodily injury." 18 Pa.C.S.A. § 3301(a) (1973). Criminal Attempt occurs "when, with intent to commit a specific crime, [a person] does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S.A. § 901. "A person is guilty of criminal homicide if he intentionally, knowingly,
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recklessly or negligently causes the death of another human being."*fn3 ...