Submitted May 12, 2014
Appeal from the Judgment of Sentence of the Court of Common Pleas, Centre County, Criminal Division, No.: CP-14-CR-0001258-2012. Before RUEST, J.
David R. Crowley, Public Defender, Bellefonte, for appellant.
Daniel C. McKenrick, Assistant District Attorney, Bellefonte, for Commonwealth, appellee.
Before: DONOHUE, WECHT, and STRASSBURGER[*], JJ. OPINION BY WECHT, J. CONCURRING OPINION BY STRASSBURGER, J.
Joseph Anthony Jenkins appeals his July 11, 2013 judgment of sentence. We affirm.
The trial court has summarized the factual and procedural history of this case as follows:
[Jenkins] and his co-defendant, Zachariah Johnson [(collectively, " Defendants" )], were charged with Robbery, Conspiracy, and Simple Assault for an incident that occurred on July 9, 2011[,] outside of the Parkway Plaza Apartments [in State College, Pennsylvania.] Defendants approached Anthony Caracillo while he was urinating by a dumpster behind the apartment complex and asked him for money to buy more beer for the party that they had all been attending. Mr Caracillo gave one of the [D]efendants a dollar, and then walked past them. Defendants then attacked Mr. Caracillo and stole possessions off of his person, ultimately leaving him injured, bloodied, and with a broken jaw.
A jury trial was held on May 21, 2013. [Jenkins] was found guilty of Robbery--Bodily Injury, 18 Pa.C.S. § 3701(a)(1)(iv), 18 Pa.C.S. § 306; Criminal Conspiracy, Robbery--Bodily Injury, 18 Pa.C.S. § 3701(a)(1)(iv), 18 Pa.C.S. § 903(a)(1); and Simple Assault, 18 Pa.C.S. § 2701(a)(1), 18 Pa.C.S. § 306(a). [Jenkins] was sentenced on July 2, 2013, to a total sentence of 3 ½ to 7 years in a State Correctional Facility. [On July 12, 2013, Jenkins] filed [a] Post-Sentence Motion arguing that Simple Assault merges with Robbery [and] that this Court therefore erred in imposing a separate sentence on that charge.
Trial Court Opinion (" T.C.O." ), 10/10/2013, at 1-2. On October 10, 2013, the trial court filed an opinion and order denying Jenkins' motion.
On November 5, 2013, Jenkins filed a timely notice of appeal. On November 6, 2013, the trial court directed Jenkins to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On November 20, 2013, Jenkins filed a timely Rule 1925(b) statement. On November 26, 2013, the trial court filed its Rule 1925(a) opinion, which responded to Jenkins' allegation of error by referring to the reasoning previously stated in the court's October 10, 2013 opinion.
Jenkins has raised a single issue for our consideration: " Did the lower court err when it imposed an illegal sentence by failing to merge the offenses of robbery and simple assault?" Jenkins' Brief at 8.
Whether Jenkins' convictions merge for the purposes of sentencing is a question implicating the legality of his sentence. As such, our standard of review is de novo and the scope of our review is plenary. Commonwealth v. Collins, 564 Pa. 144, 764 A.2d 1056, 1057 n.1 (Pa. 2001).
Section 9765 of the Pennsylvania Sentencing Code provides as follows regarding the merger of crimes for sentencing purposes:
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher[-]graded offense.
42 Pa.C.S. § 9765. Accordingly, merger is appropriate only when two distinct criteria are satisfied: (1) the crimes arise from a single criminal act; and (2) all of the statutory elements of one of the offenses are included within the statutory elements of the other. Id.
Despite the above codification of Pennsylvania merger doctrine, Pennsylvania
courts historically have struggled to articulate and apply the proper test for merger claims. In Commonwealth v. Jones, our Supreme Court addressed the issue of merger pursuant to section 9765, but was unable to establish a consensus approach. 590 Pa. 356, 912 A.2d 815 (Pa. 2006) (plurality); see Commonwealth v. Williams, 2007 PA Super. 73, 920 A.2d 887, 889 (Pa. Super. 2007) (noting that " Jones generated a 'lead opinion' approach to merger and a 'dissenting opinion' approach to merger" ). In the lead plurality opinion in Jones, Justice Castille (now Chief Justice) adopted a " practical, hybrid approach" that required courts to " evaluate the statutory elements [of each crime], with an eye to the specific allegations leveled in the case." 912 A.2d at 822. Justice Newman wrote a dissent favoring the adoption of a strict statutory test in accordance with section 9765. Id. at 827 (Newman, J., dissenting) (" [T]he elements of these two crimes differ, and sentencing thus cannot be merged pursuant to our jurisprudence and the legislative intent as evidenced by 42 Pa.C.S. § 9765." ).
One year after Jones, a panel of this Court addressed the merger doctrine in Williams. Therein, this Court adopted Justice Newman's approach as more accurately reflective of our merger doctrine jurisprudence and the legislative intent of section 9765. Id. at 891. Likewise, the Pennsylvania Supreme Court since has rejected the " practical, hybrid approach" of the Jones plurality and held that the statutory language precludes courts from merging sentences when each offense contains a statutory element that the other does not. Commonwealth v. Baldwin, 604 Pa. 34, 985 A.2d 830, 834 (Pa. 2009).
Prior to the implementation of section 9765, it appears that, under Pennsylvania common law, separate convictions for robbery and simple assault generally merged for sentencing purposes. See Commonwealth v. Gilliam, 302 Pa.Super. 50, 448 A.2d 89, 90 n.1 (Pa. Super. 1982) (citing Commonwealth v. Bryant, 282 Pa.Super. 600, 423 A.2d 407, (Pa. Super. 1980)). In fact, there are several cases indicating that " lesser" offenses, which are statutorily subsumed by robbery, merged for sentencing purposes. See Commonwealth v. Welch, 291 Pa.Super. 1, 435 A.2d 189, 190 (Pa. Super. 1981) (" [A] conviction for simple assault merges with a conviction for robbery for purposes of sentencing. After the crime of robbery is established no additional facts [are] necessary to prove simple assault." ); Commonwealth v. Brazzle, 272 Pa.Super. 438, 416 A.2d 536, 538-39 (Pa. Super. 1979) (holding that a theft charge merged with a robbery charge for sentencing because " theft is a necessary ingredient of robbery" ...