Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 84-06-821, 825.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Brosky, Rowley and Olszewski, JJ. Brosky, J., files a concurring and dissenting statement.
[ 353 Pa. Super. Page 210]
This is an appeal from the judgment of sentence entered following appellant's guilty plea to robbery [18 Pa.C.S. § 3701(a)(1)(ii)], carrying firearms on public streets or public property in Philadelphia [18 Pa.C.S. § 6108], and possession of an instrument of crime [18 Pa.C.S. § 907(a)]. Appellant was sentenced to 5 1/4 years to 20 years imprisonment on the robbery charge. The 5 1/4 year minimum sentence included 24 months pursuant to the deadly weapons enhancement provision of the Sentencing Guidelines. [204 Pa.Code § 303.4]. A consecutive term of 1-2 years imprisonment for possession of an instrument of crime and another consecutive term of 1-2 years imprisonment for carrying firearms on public streets or public property in Philadelphia were also imposed.
Appellant raises two issues on appeal: 1) that the court erred by imposing any sentence for carrying firearms on public streets or public property in Philadelphia because that crime merged with either the crime of robbery or the possession of an instrument of crime; and 2) that the court erred by imposing two consecutive sentences for robbery
[ 353 Pa. Super. Page 211]
and possession of implements of crime because, once the court added a 24 month period of incarceration to his robbery sentence pursuant to the weapons enhancement provision, the other offenses involving the same weapon and the same facts merged with the robbery.*fn1 We affirm.
In Commonwealth v. Williams, 344 Pa. Super. 108, 496 A.2d 31 (1985), an en banc panel of this Court reassessed the common law doctrine of merger. The Court stated that
[i]n order to find that separate statutory offenses merge, we must . . . determine not only that the crimes arose out of the same criminal act, transaction, or episode, but also that the statutes defining the crimes charged were directed to substantially the same harm or evil . . . . Obviously if a defendant has committed several discrete criminal acts, he may then be punished separately for each of them despite their close relationship in a single criminal episode, as long as each act is a separate injury in itself.
Id., 344 Pa. Superior Ct. at 126-28, 496 A.2d at 41-42. If the crimes involve separate criminal acts, the first element of the merger test is not satisfied and the crimes do not merge. "Even if the defendant's criminal conduct consists of a single physical act, however, the merger doctrine does not bar separate punishments if there are substantially different interests of the Commonwealth at stake, and the defendant's act has injured each interest." Id., 344 Pa. Superior Ct. at 127-29, 496 A.2d at 42. Thus, application of the merger doctrine is a two step process. First, the court must determine whether more than one discrete criminal act is involved. Secondly, if the defendant committed only one criminal act, the court must then ...