Appeal from the Order entered November 18, 1987, by the Superior Court of Pennsylvania at No. 1387 Pittsburgh 1986, vacating the Judgment of Sentence entered September 5, 1986, by the Court of Common Pleas of Erie County, Criminal Division, at No. 909 of 1986, and remanding the case for resentencing consistent with the opinion of the Superior Court.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Nix, C.j., joins the majority opinion and files a concurring opinion. Papadakos, J., files a concurring and dissenting opinion which is joined by Larsen, J. McDermott, J., files a dissenting opinion which is joined by Larsen, J.
This is a Commonwealth appeal by allowance on the question of when convictions of separate crimes merge, for sentencing purposes, because they arise from the same criminal act.
The appellee in this case, Leon Williams, pled guilty to aggravated assault, criminal attempt at robbery and unlawful restraint. These charges arose from an incident on May 30, 1986 in which Williams attacked a 61-year-old woman who was walking her dog. Williams grabbed the victim from behind, choked her and threw her to the ground, beat her, and attempted to rob her. When the victim screamed, neighbors came to help, and Williams ran away before he was able to complete the robbery. Williams was apprehended shortly after the crime and later was positively identified by the victim. The victim suffered a broken nose, fractured skull, fractured foot, black eyes, cuts, bruises, abrasions and psychological trauma.
As indicated above, Williams pled guilty to aggravated assault, criminal attempt at robbery and unlawful restraint. On September 5, 1986 he was sentenced to five to ten years for aggravated assault, a consecutive term of one and a half to ten years for attempted robbery, and a consecutive term of one and a half to five years for unlawful restraint. The total sentence was eight to twenty-five years. Further, Williams was ordered to pay the costs of prosecution and to
make restitution of $1,160.10 plus any future medical costs incurred by the victim.
A motion to reconsider the sentence was filed and denied, and Williams took an appeal to Superior Court. Superior Court partially vacated the judgment of sentence and remanded for resentencing on the ground that the unlawful restraint conviction merged with the aggravated assault and attempted robbery convictions for sentencing purposes 368 Pa. Super. 315, 534 A.2d 101. In Superior Court's view, the unlawful restraint of the victim was coextensive with the restraint occasioned by the aggravated assault and the attempted robbery. The court went on to distinguish this case from another case in which the restraint was not coextensive with other criminal acts, but was a separate successive criminal act. The facts of this aggravated assault and this attempted robbery, according to Superior Court, "'necessarily included' the unlawful restraint involved so that proof of both the aggravated assault and the criminal attempt robbery required proof of the acts upon which the unlawful restraint conviction is predicated." The lower appellate court further determined that the unlawful restraint conviction did not serve a substantially different state interest from the state interests already protected by the assault and attempt convictions:
The aggravated assault conviction and (to a lesser extent) the criminal attempt (robbery) conviction fully vindicate the Commonwealth's interest in protecting individuals from the risk of serious bodily injury and the type and degree of restraint which (in the instant case) the unlawful restraint conviction is intended to vindicate.
Judge Wieand, sitting on the Superior Court panel, disagreed that the unlawful restraint conviction merged with the other convictions. He argued that the crime of unlawful restraint contains the element of restraint, which is not present in the other crimes, and therefore asserted that the crime of unlawful restraint protects a state interest not protected by the other convictions. He thus concluded that
the unlawful restraint conviction should not merge with the other convictions.
The Commonwealth petitioned for allowance of appeal from Superior Court's order and this Court granted allocatur to address the question of whether the crimes involved in this case merge for sentencing purposes.
In Commonwealth v. Michael Williams, 514 Pa. 124, 135, 522 A.2d 1095, 1101 (1987), this Court summarized the law of merger as follows:
[M]erger is required only when two prerequisites are met. First, the crimes must "necessarily involve" one another. Second, 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. To determine whether multiple offenses involve substantially different interests, or how many evils are present in a given criminal act, the sentencing court must examine both the language of the particular statutes and the context in which each statute appears in the Crimes Code.
Superior Court in Commonwealth v. Leon Williams explained when two crimes "necessarily involve" each other as follows:
When courts decide under the merger doctrine that two crimes "necessarily involve" one another, it does not always mean that all the elements of one crime are included in the other. It 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 one offense against the Commonwealth, then the defendant may be punished
for only one offense despite the number of chargeable offenses ...