Appeal from Judgment of Sentence entered September 5, 1986 in the Court of Common Pleas of Erie County, Criminal Division, No. 909 of 1986.
Bruce L. Getsinger, Erie, for appellant.
Michael R. Cauley, Assistant District Attorney, Erie, for Com., appellee.
Wieand, Kelly and Popovich, JJ. Wieand, J., files a concurring and dissenting statement.
[ 368 Pa. Super. Page 316]
Appellant, Leon Williams, appeals from judgment of sentence imposed following his conviction of aggravated assault, criminal attempt (robbery) and unlawful restraint. We affirm the convictions, vacate judgment of sentence and remand for resentencing on the aggravated assault and criminal attempt (robbery) convictions consistent with this opinion.
On May 30, 1986, at approximately six o'clock in the morning, sixty-one year old Mrs. Helen Bohun was walking her dog. At the corner of Eighth Street and Pennsylvania Avenue in Erie, Pennsylvania, Mrs. Bohun was attacked by appellant, who grabbed his victim from behind, threw her to the ground, beat her, and attempted to rob her. The victim struggled and screamed for help. Neighbors came to her assistance; appellant fled but was apprehended a short time later. Appellant was positively identified by Mrs. Bohun who had suffered: a broken nose; a fractured skull; a fractured foot; black eyes; various cuts, bruises, and abrasions; and psychological trauma. In a written statement, appellant confessed that he had attempted to rob Mrs. Bohun in order to get some money to buy alcohol.
On July 25, 1986, following an extensive guilty plea colloquy and execution of a written waiver form which also advised appellant of his rights, appellant entered a guilty plea to charges of aggravated assault, criminal attempt
[ 368 Pa. Super. Page 317]
(robbery), and unlawful restraint. The plea was accepted by the trial court. On September 5, 1986, appellant was sentenced to consecutive terms of imprisonment of five to ten years on the aggravated assault conviction, one and one-half to ten years on the criminal attempt (robbery) conviction and one and one-half to five years on the unlawful restraint conviction. Thus, appellant was sentenced to an aggregate term of eight to twenty-five years imprisonment. Appellant was also ordered to pay costs and directed to make restitution in the amount of one thousand one hundred sixty dollars and ten cents ($1,160.10), plus any future medical bills incurred by Mrs. Bohun as a result of treatment for her injuries. A motion to reconsider sentence was filed and denied. This timely appeal is now properly before this Court for disposition.
On appeal, appellant contends that: the consecutive sentences imposed are illegal in that the offenses merged for sentencing purposes; the sentencing court stated inadequate reasons for the sentence imposed, failed to consider mitigating factors, considered improper aggravating factors, and imposed an excessive sentence; and counsel was ineffective in failing to seek recusal of all the Erie County Judges based upon the fact that the victim was the mother of a deputy clerk in the Erie County Clerk of Courts office. We shall discuss these contentions, seriatim.
Appellant first contends that the consecutive sentences imposed are illegal because the offenses merge for sentencing purposes. Appellant argues that each of the offenses arise out of a single criminal transaction; specifically, that appellant grabbed the victim, threw her to the ground, beat her, and attempted to rob her. The Commonwealth responds that the offenses do not merge because each of the offenses vindicates a substantially different interest. We find that the aggravated assault and criminal attempt convictions do not merge for sentencing purposes, but that the unlawful restraint conviction does merge with
[ 368 Pa. Super. Page 318]
the aggravated assault and criminal attempt (robbery) convictions.
Recent decisions of this Court and our Supreme Court have fully and cogently expounded the nature and limits of the merger doctrine as it applies in Pennsylvania. See Commonwealth v. Williams, 514 Pa. 124, 522 A.2d 1095 (1987); Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986); Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986); Commonwealth v. Taylor, 362 Pa. Super. 408, 524 A.2d 942 (1987); Commonwealth v. Williams, 353 Pa. Super. 207, 509 A.2d 409 (1986); Commonwealth v. Sparks, 351 Pa. Super. 320, 505 A.2d 1002 (1986); Commonwealth v. Campbell, 351 Pa. Super. 56, 505 A.2d 262 (1986); Commonwealth v. Adams, 350 Pa. Super. 506, 504 A.2d 1264 (1986); see also Commonwealth v. Williams, 344 Pa. Super. 108, 496 A.2d 31 (1985) (distinguishing the merger doctrine from the double jeopardy proscription and tracing the history and development of the doctrine). It suffices for our purposes to summarize that the merger doctrine is limited to situations when each offense arises from the same criminal act or episode and each offense "necessarily involves" the other offense such that proof of the same acts is required to prove each crime; but, even when the offenses necessarily involve one another, they do not merge if the separate offenses vindicate substantially different interests.
To determine whether separate offenses arising from a single act involve substantially different interests, both the language of the particular statutes and the context in which the statutes appear in the Crimes Code must be considered. See Commonwealth v. Sparks, supra, 351 Pa. Superior Ct. at 324, 505 A.2d at 1004; see also Commonwealth v. Williams, supra, 514 Pa. at 135, 522 A.2d at 1100-01; Commonwealth v. Taylor, supra, 362 Pa. Superior Ct. at 417, 524 A.2d at 947; Commonwealth v. Williams, supra, 344 Pa. Superior Ct. at 129, 496 A.2d at 41-42. Moreover, the merger doctrine is not to be mechanically applied; rather, the question of whether the merger doctrine applies
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should be approached with a heavy dose of common sense. See Commonwealth v. Taylor, supra, 362 Pa. Superior Ct. at 419, 524 A.2d at 947-48. "The question of merger will often turn on an appraisal of the precise facts of the case." Commonwealth v. Taylor, supra, 362 Pa. Superior Ct. at 418, 524 A.2d at 947, ...