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COMMONWEALTH PENNSYLVANIA v. JAMES SPARKS (03/05/86)

filed: March 5, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES SPARKS, APPELLANT



Appeal from the Judgment of Sentence January 23, 1984 in the Court of Common Pleas of Philadelphia County, Criminal, No. 891, 894, September 1982.

COUNSEL

Louis A. Perez, Jr., Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.

Wickersham, Brosky and Roberts, JJ. Brosky, J., filed a concurring opinion.

Author: Roberts

[ 351 Pa. Super. Page 322]

This is an appeal from a judgment of sentence after convictions for rape and aggravated assault. Appellant was sentenced to concurrent terms of imprisonment of five to ten years on the aggravated assault charge and eight to twenty years on the rape conviction. We affirm.

[ 351 Pa. Super. Page 323]

Viewed in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Sudler, 496 Pa. 295, 302, 436 A.2d 1376 (1981), the evidence establishes that the complaining witness, Dana Dangerfield, was acquainted with appellant for approximately two months before the events which led to the instant charges. On August 4, 1982, she accompanied him from Philadelphia to New Jersey to buy a car. While there, appellant also bought a watch for Ms. Dangerfield. Upon their return to Philadelphia, the witness accepted appellant's invitation to watch television at his apartment. After about ninety minutes, she rose to leave. Appellant turned off the television and advanced towards her. He bent her arm backwards and pulled her into his bedroom, saying, "I didn't buy the watch for nothing." In the bedroom, appellant pushed Ms. Danger-field to the bed. She tried to kick him, but he punched her in the left jaw. It was later discovered that the jaw was broken. Then she tried to scratch him, but he kicked her in the head with his knee. Then he choked her and struck her in the left ribs. Finally, appellant had sexual intercourse with his now helpless victim.

Appellant contends that the trial court erred in failing to merge the crimes of rape and aggravated assault for sentencing purposes. In Commonwealth v. Williams, 344 Pa. Super. 108, 496 A.2d 31 (1985) (en banc), this Court held that merger is required only when two prerequisites are met. First, the crimes must "necessarily involve" one another. According to Williams, supra.:

When courts decide under the merger doctrine that two crimes "necessarily involve" one another, . . . [i]t means that on the facts of the case the two crimes were so intimately bound up in the same wrongful act that as a practical matter proof of one crime necessarily proves the other, so that they must be treated as the same offense. See, e.g., Commonwealth v. Jackson, 271 Pa. Super. 131, 412 A.2d 610 (1979); Commonwealth v. Richardson, 232 Pa. Super. 123, 334 A.2d 700 (1975). If the same facts show that practically speaking there was only

[ 351 Pa. Super. Page 324]

    one offense against the Commonwealth, then the defendant may be punished for only one offense despite the number of chargeable offenses arising out of the transaction. See, e.g., Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981); Commonwealth v. Artis, 294 Pa. Super. 276, 439 A.2d 1199 (1982); Commonwealth v. Eberts, 282 Pa. Super. 354, 422 A.2d 1154 (1980).

Second, the Williams court said, even if the two crimes "necessarily involve one another" they do not merge "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 128, 496 A.2d at 42. To determine whether multiple offenses involve substantially different interests, the sentencing court must examine both the language of the ...


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