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COMMONWEALTH PENNSYLVANIA v. TIMOTHY ROBINSON (06/27/88)

submitted: June 27, 1988.

COMMONWEALTH OF PENNSYLVANIA,
v.
TIMOTHY ROBINSON, APPELLANT



Appeal from the Judgment of Sentence of December 28, 1987, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 8701-1550-1554.

COUNSEL

Howard Kaiser, Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Rowley, Del Sole and Beck, JJ.

Author: Beck

[ 379 Pa. Super. Page 205]

Appellant was found guilty and sentenced on the charge of robbery, a first degree felony, and recklessly endangering another person, a misdemeanor of the second degree. Defendant was also found guilty of conspiracy and simple assault but was not sentenced on those charges. Appellant raises five issues on appeal. As to the first four issues we rely on the excellent opinion of the trial court and affirm on the basis of that opinion.

Appellant's fifth issue raises the question of whether robbery and recklessly endangering another person merge for purposes of sentencing. We note that the trial court, which originally concluded that the offenses did not merge, changed its mind and in its opinion states that it erred and that the two offenses merge for sentencing purposes. We conclude that the appellant and the trial court are correct and that these offenses merge.

[ 379 Pa. Super. Page 206]

In Commonwealth v. Walls, 303 Pa. Super. 284, 449 A.2d 690 (1982), appellant claimed that the trial court erred in imposing a suspended sentence for recklessly endangering another person because this offense merged with robbery for sentencing purposes. This court noted that offenses merge for sentencing purposes where one crime necessarily involves another. The section of the robbery statute under which Walls was convicted requires that, in the course of committing a theft, a person "threatens another with or intentionally puts him in fear of immediate serious bodily injury." 18 Pa.Cons.Stat.Ann. § 3701(a)(1)(ii) (Purdon 1983). The recklessly endangering statute applies where a person "recklessly engages in conduct which places or may place another person in fear of death or serious bodily injury." 18 Pa.Cons.Stat.Ann. § 2705 (Purdon 1983).

Walls had robbed a bank by approaching a teller and pointing a sawed-off shotgun in her face. This single set of facts established the necessary elements for both the offenses of robbery and recklessly endangering another person. The Superior Court therefore concluded that the offenses merged because where "no additional facts are needed to prove the additional offense, it merges into the primary offense for sentencing purposes." 303 Pa. Super. at 294, 449 A.2d at 695.

In the instant case, the pertinent section of the robbery statute provides "a person is guilty of robbery if, in the course of committing a theft, he inflicts serious bodily injury upon another." 18 Pa.C.S.A. § 3701(a)(1)(i) (Purdon 1983). The statute for recklessly endangering another person is the same as that in Walls. In the instant case, the bodily injury to the victim occurred when she fell while being swung around as appellant grabbed her handbag. As in Walls, this set of facts alone is sufficient to establish the elements of both robbery and recklessly endangering another person. Therefore, under the Walls test, these offenses should merge for sentencing purposes.

The issue is whether the Walls test has survived the merger standards established in the ...


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