APPEAL FROM THE JUDGMENTS OF SENTENCE OF THE COURT OF COMMON PLEAS, CRIMINAL DIVISION PHILADELPHIA COUNTY AT NOS. 1187, 1190 MAY TERM 1977
Gerald T. Gervasi, Merion Station, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Stuart Suss, Assistant District Attorney, West Chester, amicus curiae.
Spaeth, President Judge, and Wickersham, Brosky, Cirillo, Beck, Popovich and Hester, JJ. Popovich, J., concurs in the result. Spaeth, President Judge, files a concurring opinion, in which Brosky, J., joins.
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This case was certified to the Court en banc to address problems arising under the doctrine of merger of offenses for sentencing.
Leon Williams was tried by jury and convicted of aggravated assault, possession of a prohibited offensive weapon, carrying a firearm on a public street in Philadelphia, and resisting arrest. The charges stemmed from an incident that occurred on an evening in February, 1976, in the City of Philadelphia. Officers Moriarity and Winchester of the Philadelphia Police Department were on highway patrol; near the intersection of Belmont and Westminster Avenues they spotted two men by a row of parked cars. One of the men had a suspicious large bulge under his jacket, so the officers got out of their car to investigate. Officer Winchester approached the man with the bulge, who turned out to be Michael Jefferson. The bulge turned out to be a fourteen-inch mallet. Officer Moriarity approached the other man, appellant Leon Williams, and asked to see identification. After showing the officer an ID card, Williams began to shake and tremble, then suddenly jumped back and crouched. Instinctively, Moriarity yelled out "He has a gun" and dove for cover. In the same instant a blast emanated from the sawed-off shotgun Williams had produced from under his clothing. The officers returned fire as Williams stood behind a nearby car pointing the shotgun at both officers and warning them to stay back or he would shoot. Williams then fled down the street with Moriarity in pursuit on foot and Winchester giving chase in the squad car. Moriarity had to take cover several times when Williams turned and waved the shotgun at him. Eventually
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Williams discarded the gun, ran into an abandoned housing complex, and disappeared.
About three days later, a New York policeman stopped an automobile driven by Williams headed north on a highway in upstate New York. The Philadelphia authorities, however, were unable to catch up with Williams until April of 1977, when he was brought back to stand trial on charges arising from the shotgun incident. After a jury found him guilty of the previously mentioned charges, Williams was sentenced in the Philadelphia Court of Common Pleas to consecutive, maximum prison terms for each offense.
Williams appealed to this Court, alleging that he
was unlawfully and duplicitously sentenced to consecutive maximum terms of imprisonment for assault, resisting arrest, possessing a prohibited offensive weapon, and carrying a firearm on a public street, since all of these convictions resulted from the single unlawful act of firing a sawed-off shotgun, and they thus merge for sentencing purposes.
Williams also alleged trial court error and ineffectiveness of trial counsel in relation to the following issues: 1) the sufficiency of the evidence to prove aggravated assault; 2) the prosecutor's injection of inflammatory statements and personal opinion into his closing argument; 3) the prosecutor's reference to non-record evidence of Williams's address; 4) the admission of hearsay to establish the direction in which the shotgun was fired; 5) the admission of hearsay testimony that Michael Jefferson told the police where Williams lived; and 6) the admission of evidence that Williams gave an alias to the New York policeman who stopped him three days after the incident, when the existence of this evidence had not been disclosed in response to the defendant's pre-trial discovery request.
A three-judge panel of this Court unanimously rejected all of appellant's claims save the sentencing merger issue. On that issue the panel held that for sentencing purposes
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resisting arrest merged with aggravated assault, and the two firearms offenses merged with each other. The panel vacated sentence on the charges of resisting arrest and carrying a firearm in Philadelphia. One judge dissented in part and would have held that none of the offenses merged.
We granted the Commonwealth's application for reargument limited to the merger issue. We have, however, reviewed each of appellant's remaining claims de novo, and found them not to warrant relief. On the merger issue, we now hold that the firearms and weapons offenses merge with each other for sentencing purposes, but that the aggravated assault and resisting arrest charges do not merge with each other, nor do they merge with the other violations.
The doctrine of merger is at best a confusing area of the law to approach. As Mr. Justice Pomeroy frankly admitted, speaking for the Supreme Court of Pennsylvania, "Our decisions on the doctrine of merger are not altogether harmonious." Commonwealth v. Sparrow, 471 Pa. 490, 503, 370 A.2d 712, 718 (1977). Superior Court decisions on sentencing merger exhibit little consistency in rationale of their own. The confusion surrounding merger stems in part from its dual origins in constitutional and common law. To curtail this trend of confusion, we strongly urge courts deciding sentencing merger issues in the future to keep both of these roots firmly in mind.
Constitutional limitations on multiple punishments
One of the guarantees found in the Double Jeopardy Clause of the United States Constitution is protection against more than one punishment for the "same offence." U.S. Const. amend. V; Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874). The Fifth Amendment proscription on multiple punishments for the same offense has of late been made binding on the State governments by virtue
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of the Fourteenth Amendment, U.S. Const. amend. XIV. See North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
Pennsylvania has its own constitutional provision making it unlawful for any person to be twice put in jeopardy for the "same offense." Pa. Const. art. 1, § 10. As our State Supreme Court recently reaffirmed, however, in the multiple punishments context the double jeopardy guarantee contained in Article 1, § 10 is coextensive with its counterpart in the Fifth Amendment. Commonwealth v. Goldhammer, 507 Pa. 236, 247-248 n. 4, 489 A.2d 1307, 1313 n. 4 (1985); accord, Commonwealth v. Bostic, 500 Pa. 345, 350-51 n. 4, 456 A.2d 1320, 1322 n. 4 (1983). Thus, in determining whether multiple punishments have been unconstitutionally inflicted for the same offense, our State courts simply apply the rules used to effectuate the Fifth Amendment guarantee against double jeopardy. See, e.g., Commonwealth v. Houtz, 496 Pa. 345, 437 A.2d 385 (1981); Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981).
In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932), the Supreme Court set forth the definitive test for determining when conduct in violation of more than one statute must be treated as the "same offense" for double jeopardy purposes: "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." That is, more than one offense may be found and punished in any given act or transaction only where each offense requires proof of an element not contained in the other(s). Id.
The Blockburger "same offense" test is the same one that traditionally has been used to determine whether one offense is a "constituent" or "lesser included" offense of another. See Tarver, supra; see also Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984); Commonwealth v. Pemberth, 339 Pa. Super. 428, 489 A.2d 235 (1985).
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The test depends solely on a comparison of the elements of the crimes charged, not on the similarity or even the identity of the evidence introduced at trial to establish their commission. See United States v. Woodward, 469 U.S. , 105 S.Ct. 611, 83 L.Ed.2d 518 (1985); Commonwealth v. Maddox, 307 Pa. Super. 524, 453 A.2d 1010 (1982). Only when all the elements of one crime are also elements of the other may they be classified as the "same offense." See, e.g., Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); see and compare Black's Law Dictionary 812 (5th ed. 1979) ("Lesser included offense"); cf. also 18 Pa.C.S. § 109(1) (when prosecution barred by former prosecution for the same offense).
Although it is frequently overlooked, it cannot be overemphasized that the "same offense" test of double jeopardy does not prohibit cumulating punishments at a single trial for multiple statutory offenses simply because they all arise from the same act or transaction. Even a single, indivisible act may support more than one punishment under separate statutory provisions if each provision requires proof of a fact that the other does not. Thus, in Woodward, supra, a unanimous Supreme Court held that the defendant's solitary act of checking off the "no" box on a customs form supported double punishments for making a false statement to a federal agency and failing to report currency, because each statutory offense required proof of an element not contained in the other. See also Commonwealth v. Whelton, 319 Pa. Super. 42, 465 A.2d 1043 (1983) (single, undifferentiated act of possessing one gun supported two discrete sentences for separate firearms violations without offending double jeopardy). "Same offense" refers, in the strict sense, to a greater and its necessarily included lesser offense; one must involve the other not only in the factual context of the case, but also by definition of the crimes charged. For two crimes arising from the same transaction to be the "same offense," a comparison of their statutory elements must reveal that proof of one offense
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will necessarily prove the other. See Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980).
Classic examples of one offense being necessarily included in another are the greater and lesser offenses of rape and fornication, and robbery and theft. See Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941); Commonwealth v. Mitchell, 319 Pa. Super. 170, 465 A.2d 1284 (1983); Commonwealth v. Jellots, 277 Pa. Super. 358, 419 A.2d 1184 (1980). To use another example that has recently come to prominence, in a felony-murder prosecution the underlying felony is a lesser included offense of, and therefore the "same offense" as, the felony-murder itself, because proof of felony-murder ipso facto proves all the elements of the underlying felony; indeed, proof of the underlying felony is necessary to establish that a killing was in fact felony-murder. Tarver, supra; see also Harris, supra; Maddox, supra. Cf. People v. Robideau, 419 Mich. 458, 355 N.W.2d 592 (1984) (plurality opinion) (suggesting crimes like felony-murder/underlying felony are not true greater/lesser included offenses, but "compound" and "predicate" crimes).
The final principle of double jeopardy law which must be stated here is that the Double Jeopardy Clause does not restrict the legislature's ability to prescribe more than one punishment for the same offense. It serves only to restrain courts from imposing and prosecutors from seeking more than one punishment under a particular legislative enactment, and to prevent the court from exceeding its legislative authorization by imposing more than one punishment for the same offense. Bostic, supra; Tarver, supra; see also Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). For double jeopardy purposes, the Blockburger "same offense" test is merely a rule of statutory construction to be employed where the legislature has not explicitly authorized separate punishments for a single offense. "The assumption underlying the rule is that Congress ordinarily does not intend
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to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the 'same offense,' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 1437-38, 63 L.Ed.2d 715, 723-24 (1980) (emphasis added).
Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the "same" conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.
Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535, 544 (1983) (emphasis added).
Thus, in Hunter, and again in Bostic, supra, where a legislative intention to do so was clearly spelled out, cumulative punishments could be imposed for a felony and for the use of a firearm in commission of that felony, even though one was necessarily involved in the other and both therefore amounted to the "same offense" as defined in Blockburger.
Bearing in mind the Blockburger "same offense" test as a constitutionally established rule of statutory construction, we turn to examine whether it was a violation of double jeopardy for appellant to receive separate sentences for aggravated assault, resisting arrest, prohibited offensive weapons, and carrying a firearm on the streets of Philadelphia. We conclude that it was not.
The aggravated assault charge was submitted to the jury under 18 Pa.C.S. § 2702(a)(1) & (2). These provisions state in pertinent part: " (a) Offense defined. -- A person is guilty of aggravated assault if he: (1) attempts to cause serious
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bodily injury to another . . . (2) attempts to cause . . . serious bodily injury to a police officer making or attempting to make a lawful arrest. . . ." (Emphasis ours). The crime of resisting arrest of which appellant was found guilty is defined at id. § 5104:
A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.
Initially, a comparison of the elements of these two crimes reveals that each requires proof of a fact that the other does not. The aggravated assault charge lodged against appellant required proof that he attempted to cause serious bodily injury to Officer Moriarity. "Serious bodily injury" is defined in the Crimes Code as "Bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id. § 2301. To prove this element of the assault, the Commonwealth had to prove the actual intentional discharging of the shotgun at Moriarity. This particular fact was not crucial to the resisting arrest charge. Resisting arrest does not require an attempt to cause serious bodily injury to a police officer. Here, evidence that appellant brandished the shotgun, threatened the officers with it, and used it to escape would alone have been sufficient to prove that he created "a substantial risk of bodily injury" (defined as "impairment of physical condition or substantial pain," id.), or that he put up resistance requiring a policeman to use "substantial force" to overcome it. Any of these lesser degrees of force employed by appellant in turn would have sufficed to prove resisting arrest.
Of course, the actual firing of the gun also could have supported a conviction for resisting arrest. Nevertheless, resisting arrest does ...