Appeal from the Order of the Superior Court entered May 10, 1985, at No. 375 Philadelphia 1983, Vacating the Judgment of Sentence of the Court of Common Pleas of Chester County at No. 611-78 Entered January 28, 1983. 343 Pa. Superior Ct. 280,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., files a concurring opinion. Larsen, J., files a concurring opinion. Zappala, J., concurs in the result.
This is an appeal by allowance*fn1 by the Commonwealth of Pennsylvania (Appellant) from the May 10, 1985, Order of
the Superior Court vacating Appellee's three sentences for criminal attempt (murder of the first degree), and one sentence for arson endangering persons, and remanding the case to the trial court for resentencing on the arson conviction.
Appellee, Michael Robert Williams, was convicted of arson endangering persons,*fn2 arson endangering property,*fn3 burglary,*fn4 theft by unlawful taking,*fn5 theft by receiving stolen property,*fn6 criminal conspiracy,*fn7 and three counts of criminal attempt (murder of the first degree).*fn8 The convictions resulted from the April 2, 1978, burglary and subsequent burning of the residence of James Latta. On August 14, 1979, the trial court sentenced Appellee to ten (10) to twenty (20) years on the arson endangering persons count; five (5) to ten (10) years on each of the three attempt counts; and five (5) to ten (10) years on the burglary conviction. All sentences were to run consecutively for an aggregate term of thirty (30) to sixty (60) years.
The evidence at trial established that during the burglary, Appellee told one of his accomplices that he knew the residents were at home, and that if they came downstairs he would kill them. Further, after the burglary, Appellee stated that he intended to set the house on fire to make the Lattas "pay" for the misfortunes of his brother (unrelated to any conduct of the Lattas). While the evidence at trial was sufficient to support all of the convictions, the trial judge suspended sentence upon the convictions for theft by unlawful taking and criminal conspiracy, and did not impose sentence for theft by receiving stolen property on merger grounds. Commonwealth v. Williams, 30 Chester 166, 167
(see n. 3) (1981). Sentence on the arson endangering property conviction was also suspended. Id. at 167, n. 2.*fn9
On direct appeal, the Superior Court remanded the case to the trial court for appointment of new counsel and for a hearing on the issue of ineffectiveness of trial counsel. The trial court, finding that trial counsel had been ineffective for failure to present argument prior to imposition of sentence, vacated the sentences. On January 21, 1983, Judge Sugerman resentenced Appellee to sentences identical to those originally imposed. A second direct appeal was taken in which Appellee contended, inter alia, that his conviction for arson endangering persons merged for sentencing purposes with his three convictions for criminal attempt (murder of the first degree), therefore, the multiple sentences imposed were illegal.
Superior Court held that the trial court erred in imposing separate sentences for the crime of arson endangering persons and for each of the criminal attempt crimes reasoning that "[a]fter the Commonwealth had completed its proof of the crime of attempted murder, it also completed its proof for the crime of arson endangering persons." Accordingly, Superior Court vacated the three sentences for criminal attempt and arson endangering persons, and remanded for resentencing on the arson conviction. Commonwealth v. Williams, 343 Pa. Superior Ct. 280, 494 A.2d 467 (1985). We granted the Commonwealth's Petition for Allowance of Appeal, and we now reverse.
On this appeal, the Commonwealth presents the following issues for our consideration: 1) whether a defendant who sets fire to a house intending to kill each of the three occupants may lawfully be given separate sentences for each of the three attempted first degree murders; 2) whether a defendant convicted of both criminal attempt (murder of the first degree) and arson is entitled, by virtue of the merger doctrine, to vacation of the sentences imposed for
the three criminal attempts; 3) whether a trial court may resentence a defendant on certain counts of an information following an appellate reversal of other counts on grounds of merger; and 4) whether the merger doctrine should be abolished in Pennsylvania since there is neither justification nor need for the doctrine's continued existence.
Appellant first argues that the Superior Court's ruling that separate sentences could not be imposed for the attempted murder of each victim is in conflict with our decision in Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098 (1984). Appellee counters that the instant case is distinguishable from Frisbie because the issue here is whether a single act -- regardless of whether multiple victims exist -- can be the basis for multiple sentences for each of several crimes that resulted from the single act. In other words, where a defendant commits a single act of setting fire to a building known to be occupied, can that act be the basis for multiple sentences for arson endangering persons and for criminal attempt.
In Frisbie, we held that a single unlawful act which affects multiple victims may support multiple sentences without violating the double jeopardy clause of the Fifth Amendment of the United States Constitution. Therein, we expressly overruled our decision in Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), and dispelled the notions that "where there is but one act of cause of injury, or death of a number of persons, there is but one injury to the Commonwealth . . ." and that "it is beyond the power of a court imposing sentence to impose multiple sentences on a defendant for a single act." Frisbie, supra, 506 Pa. at 465, 485 A.2d at 1099; citing the specific language of Commonwealth v. Walker, supra. We determined that in resolving this issue "our task is to simply determine whether the Legislature intended that each injury constitute a separate offense." Frisbie, 506 Pa. at 465-66, 485 A.2d at 1100. We held that with regard to recklessly endangering another person (18 Pa.C.S. § 2705), the Legislature intended a separate offense for each person who was a victim of the
criminal conduct. Id. Therefore, it was permissible to impose nine separate sentences for recklessly endangering another person as a result of the single action of propelling an automobile through a crowded intersection and injuring nine pedestrians.
The same legislative intent would apply in the case of criminal attempt (criminal homicide). "Criminal attempt" (18 Pa.C.S. § 901(a) is defined:
A person commits an attempt when with intent to commit a specific crime he does any act which constitutes a substantial step ...