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COMMONWEALTH PENNSYLVANIA v. ELIJAH YATES (02/06/89)

submitted: February 6, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
ELIJAH YATES, APPELLANT



Appeal from the Post Conviction Relief Act August 10, 1988 in the Court of Common Pleas of Philadelphia County, Criminal No. 81-03, 934, 35, 36, 37, 38, 39.

COUNSEL

Larry D. Feldman, Philadelphia, for appellant.

Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Del Sole, Kelly and Hester, JJ. Del Sole, J., concurs in the result.

Author: Kelly

[ 386 Pa. Super. Page 283]

The principal issue raised by this appeal is whether two convictions for aggravated assault, arising from injuries to two individuals caused by a single blast from a shotgun, should have been deemed to have merged under the common law merger doctrine as applied in Pennsylvania. We find that the offenses did not merge, and affirm the order denying appellant post-conviction relief.

In February 1981, appellant went to Debra Wimes' apartment armed with a loaded shot gun and engaged in an argument with the occupants of the apartment, including Rosetta Williams, the grandmother of his children. After he was pushed out of the apartment and the door was closed in his face, appellant placed the shot gun against the wooden door, and fired into the apartment. Louis Pigford and Debra Wimes were both seriously injured by the blast. Fortunately, none of the five children, or other adults present in the apartment were injured by the blast.

Appellant was arrested, tried by jury, and convicted of two counts each of aggravated assault and reckless endangerment, and one count each of possessing the instrument of a crime and possessing a prohibited offensive weapon. Post-verdict motions were denied. Appellant was sentenced to consecutive five to ten year terms of imprisonment on the two aggravated assault convictions, and a concurrent term of one to two years imprisonment on the possessing an instrument of crime conviction.

[ 386 Pa. Super. Page 284]

This Court affirmed on direct appeal, and our Supreme Court denied allocatur. Two separate petitions in federal court for habeas corpus relief have been denied. On May 5, 1984, appellant filed a petition under the now superseded Post-Conviction Hearing Act. 42 Pa.C.S.A. §§ 9541 et seq. (superseded as to all petitions filed on or after April 13, 1988 by the Post-Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq.). Counsel was appointed, an amended petition was filed, and an evidentiary hearing was conducted. The trial court then denied appellant's P.C.H.A. petition on August 10, 1988. This timely appeal followed.

Appellant contends on appeal that consecutive sentences for two aggravated assault convictions arising from a single shot gun blast violated the common law merger doctrine as applied in Pennsylvania. Appellant also contends that trial counsel was ineffective in failing to spend sufficient time consulting with appellant.*fn1 We find no merit in the contentions and affirm the order denying post-conviction relief.

Appellant contends that separate sentences for two aggravated assault convictions arising from a single criminal act are illegal in that they violate the common law merger doctrine as applied in Pennsylvania. Appellant argues that the language of the aggravated assault statute evinces an intent to protect society in general, rather than individuals particularly, and therefore injuries to several people in violation of that statute resulting from a single act may only give rise to a single sentence. He cites Commonwealth v. ...


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