Summary
In Commonwealth v. Edwards, 256 A.3d 1130 (Pa. 2021), our Supreme Court explained that merger requires an analysis of the elements of the statute, not the specific facts of the case at issue.
Summary of this case from Commonwealth v. RosarioOpinion
No. 26 EAP 2020
08-17-2021
COMMONWEALTH of Pennsylvania, Appellee v. Mark EDWARDS, Appellant
Keir Nyree Barros-Bradford, Esq., Robin S. Forrest, Esq., Philadelphia, Aaron Joshua Marcus, Esq., Leonard Sosnov, Esq., Defender Association of Philadelphia, Harrisburg, for Appellant. Lawrence Jonathan Goode, Esq., Philadelphia, Andrew Joseph Greer, Esq., Jessica Attie Gurvich, Esq., Philadelphia District Attorney's Office, Appellee
Keir Nyree Barros-Bradford, Esq., Robin S. Forrest, Esq., Philadelphia, Aaron Joshua Marcus, Esq., Leonard Sosnov, Esq., Defender Association of Philadelphia, Harrisburg, for Appellant.
Lawrence Jonathan Goode, Esq., Philadelphia, Andrew Joseph Greer, Esq., Jessica Attie Gurvich, Esq., Philadelphia District Attorney's Office, Appellee
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE MUNDY
In this case, we construe our merger statute, 42 Pa.C.S. § 9765, and consider for sentencing purposes whether Appellant's conviction for Recklessly Endangering Another Person (REAP), 18 Pa.C.S. § 2705, merges into his conviction for Aggravated Assault pursuant to 18 Pa.C.S. § 2702(a)(1). More precisely, we consider whether the Superior Court correctly evaluated the statutory elements of each crime for which Appellant was convicted, rather than the particular proven facts, in determining merger was not appropriate. For the reasons that follow, we affirm the Superior Court's decision regarding the discrete issue before us.
§ 9765. Merger of sentences
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.
§ 2705. Recklessly endangering another person
A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.
18 Pa.C.S. § 2705.
§ 2702. Aggravated Assault
(a) Offense defined.—A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.
18 Pa.C.S. § 2702(a)(1) (emphasis added).
The lower courts summarized the relevant factual and procedural history as follows:
[O]n Saturday, August 15, 2015, just before 7:00 p.m., a tan 2004 Ford Mercury Grand Marquis occupied by a single male driver travelled at a high rate of speed and struck a moving vehicle occupied by two adults and one child in a residential neighborhood near the corners of Large Street and Magee Avenue in Northeast Philadelphia. Eyewitnesses observed that following the striking of the first occupied vehicle, the vehicle, ... [the] Marquis, then continued to travel erratically at a high rate of speed and without stopping, turned from Magee Avenue and onto the 6600 block of Sylvester Street[,] where it collided with multiple parked vehicles along the way.
After hitting numerous parked cars, witnesses saw this same vehicle strike a six[-]year[-]old child who had been riding her bike and playing on the sidewalk near her home located within the same block. The force of this collision sent this slight and small child flying into the air and landing head first in a neighbor's side garden. Appellant ... was then observed unsuccessfully attempting to escape by driving the vehicle into another parked car[,] which blocked his exit. Appellant was seen immediately thereafter leaping from the driver's side of the car and running on foot away from the path of destruction he caused.
The injured child's mother ... reported that just before the crash she heard the screeching of an approaching vehicle as it swerved and sped down the 6600 block of Sylvester Street where she was standing in front of her home. As she saw the vehicle striking numerous parked cars, she ran immediately toward her daughter in an attempt to pull her from the sidewalk to safety. ... As [Mother] ran to her daughter[,] she saw the back of the male driver of the striking vehicle as he exited the driver[‘s] side of the otherwise unoccupied vehicle and [ran] away from his misdeeds.
Commonwealth v. Edwards , 229 A.3d 298, 300-303 (Pa. Super. 2020).
At the conclusion of a bench trial, Appellant was found guilty on all charges, which included one count of aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(1), and one count of REAP pursuant to 18 Pa.C.S. § 2705. Prior to sentencing, the presiding judge directed the completion of presentence evaluations and mental health evaluations. On July 25, 2017, a sentencing hearing was conducted. After hearing testimony and conducting a review of all presentence and mental health evaluations, victim impact statements, and correspondence submitted on behalf of Appellant, he was sentenced to an aggregate term of ten to twenty-five years’ imprisonment. As it pertains to the issue before this Court, Appellant received consecutive sentences of: (1) six to twelve months’ incarceration for his REAP conviction, and (2) seven years and six months’ to twenty years’ incarceration for his aggravated assault conviction.
In total, Appellant was convicted of one count of the following: Aggravated Assault, 18 Pa.C.S. § 2702(a)(1) ; Aggravated Assault by Vehicle, 75 Pa.C.S. § 3732.1(a) ; Accident Involving Death or Personal Injury, 75 Pa.C.S. § 3742(a) ; Simple Assault – Attempt or Cause Bodily Injury to a Child, 18 Pa.C.S. § 2701 ; Recklessly Endangering Another Person, 18 Pa.C.S. § 2705 ; Accident Involving Damage Attended Vehicle/Property, 75 Pa.C.S. § 3743(a) ; and Possessing an Instrument of a Crime, 18 Pa.C.S. § 907(a). Appellant was also convicted of four counts of Criminal Mischief – Tampering with Property, 18 Pa.C.S. § 3304(a)(2).
The court also imposed rehabilitative conditions, including participation in anger management classes, vocational training, employment training, dual diagnosis evaluation and treatment, and drug and alcohol screening. Appellant was also ordered to have no contact with the Commonwealth's witnesses, and to submit to random drug and alcohol testing. Restitution was ordered in the amount of $3,724.00.
Appellant filed a timely post-sentence motion, which the trial court denied on October 18, 2017. On November 17, 2017, Appellant filed a timely notice of appeal, challenging the sufficiency of the evidence pertaining to his convictions for criminal mischief and the instant merger issue. Specifically, Appellant raised the following issue regarding merger: "Should not the sentence for aggravated assault and REAP have merged where 1) the two offenses meet the elements test set out in 42 Pa.C.S. § 9756 ; and 2) assuming arguendo the elements test was not met, Section 9756 is unconstitutional on its face and as applied, as it conflicts with the Pennsylvania judicial test for merger and violates separation of powers and double jeopardy rights under the Pennsylvania Constitution?" Appellant's Superior Court Brief at 3-4.
In his argument regarding merger, Appellant relied in part on a footnote in this Court's decision in Commonwealth v. Baldwin , 604 Pa. 34, 985 A.2d 830 (2009). In Baldwin , this Court considered whether carrying a firearm without a license, 18 Pa.C.S. § 6106, and carrying a firearm on the public streets of Philadelphia, 18 Pa.C.S. § 6108, should merge for sentencing purposes. Id . at 832. Baldwin argued that both crimes should merge where the same narrow set of facts established both crimes as any other interpretation would trigger double jeopardy concerns. Id . The Baldwin Court examined the text of each statute, and decided merger was not appropriate as each offense included an element that the other did not. Id . at 835 ("[ Section 9765 ] makes the legislature's intent with respect to merger manifest. That intent focuses solely on the elements of the offenses for which a criminal defendant has been convicted."). In footnote 6, the Court cautioned trial courts to take care in determining which particular violations of law are at issue in a given case based on the "simple legislative reality" that conduct prohibited by some statutes may overlap. Id . at 837.
Appellant did not argue the applicability of Baldwin ’s central holding; rather, he claimed only footnote 6 applied. See Appellant's Superior Court Brief at 35.
§ 6106. Firearms not to be carried without a license
(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.
(2) A person who is otherwise eligible to possess a valid license under this chapter but carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.
18 Pa.C.S. § 6106(a)(1)-(2).
§ 6108. Carrying firearms on public streets or public property in Philadelphia
No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:
(1) such person is licensed to carry a firearm; or
(2) such person is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).
18 Pa.C.S. § 6108(1) – (2).
The relevant text of footnote 6 is as follows:
It is no coincidence that we decline to characterize Section 9765 in terms any broader than the statute's own language. It is, in the final analysis, an enactment of this Commonwealth's legislature that must be interpreted according to the rules of statutory construction, 1 Pa.C.S. § 1901, et seq. Labels, such as ‘pure elements test’ and ‘strict elements approach,’ have often led to greater mischief. ... [In Whalen v. United States , 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) ], the Court demonstrated a recognition that examination of the elements of the crimes as charged is sometimes necessary, especially when dealing with an offense that can be proven in alternate ways.
Therefore, while Section 9765 indeed focuses on an examination of ‘statutory elements,’ we cannot ignore the simple legislative reality that individual criminal statutes often overlap, and proscribe in the alternative several different categories of conduct under a single banner. See, e.g. , Aggravated Assault, 18 Pa.C.S. § 2702 (defining seven distinct violations of law); Involuntary Deviate Sexual Intercourse, 18 Pa.C.S. § 3123 (setting forth eight separate violations). Consequently, in such cases, we caution that trial courts must take care to determine which particular "offenses," i.e. violations of law, are at issue in a particular case. See, e.g., Commonwealth v. Johnson , 874 A.2d 66, 71 n.2 (Pa. Super. 2005) (recognizing that a particular subsection of a criminal statute may merge with another crime as a lesser-included offense even though a different subsection of that same statute may not).
Baldwin , 985 A.2d at 837, n.6.
The Superior Court unanimously reversed Appellant's four criminal mischief convictions, vacated the judgment of sentence, and remanded the case for resentencing. Commonwealth v. Edwards , 229 A.3d 298, 300 (Pa. Super. 2020). The panel concluded insufficient evidence existed to sustain the criminal mischief convictions since Appellant's damage to the idle neighborhood cars did not constitute tampering. Id . at 310. Upon examining the plain language of the statute, the Superior Court deemed "tamper" to constitute more than the mere damage Appellant caused when he crashed into several parked cars while travelling at a high rate of speed. Id .
With regard to merger, the panel concluded that Appellant's sentences for aggravated assault and REAP should not merge. Id . at 312. It noted Appellant's convictions arose from the same criminal act of striking the victim with his vehicle. Id . at 313. Thus, the question of merger hinged on whether all of the statutory elements of aggravated assault included the elements of REAP. The panel concluded it did not, as "there are ways an individual could commit aggravated assault under Section 2702(a)(1) without committing REAP and vice versa[.]" Id . at 315.
In response to Appellant's constitutional argument, the Superior Court found it warranted no relief since the merger statute, Section 9756, does not violate the separation of powers doctrine, nor does it violate Pennsylvania's double jeopardy clause. This issue is not presently before this Court.
In so deciding, the panel relied heavily on its decision in Commonwealth v. Cianci , 130 A.3d 780 (Pa. Super. 2015). In Cianci , the defendant was charged and convicted of both aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(1) and REAP. Id . at 781. The Cianci panel concluded the sentences should not merge, since each crime required an element of proof that the other did not. Id . at 782. Specifically, it noted aggravated assault contained the element of serious bodily injury or an attempt to cause serious bodily injury. Unlike aggravated assault, REAP required the element of actual danger of death or serious bodily injury. Since it was possible to place another person in danger of serious bodily injury without attempting to cause or actually causing serious bodily injury (and vice versa), the Cianci panel concluded merger was not warranted. Id . at 782.
In the instant matter, the Superior Court panel rejected Appellant's claims that Cianci was distinguishable. Namely, it rejected Appellant's argument that the panel in Cianci did not consider the narrower question of whether a conviction under the "actually causing injury" portion of Section 2702(a)(1) merged with REAP. It explained Appellant was not convicted of "attempting to cause serious bodily injury" or "causing such injury intentionally, knowingly, or recklessly"—he was convicted of aggravated assault under Section 2702(a)(1) generally. Edwards , 229 A.3d at 313. The panel stated it remained unconvinced that Section 9765 required such parsing as Appellant suggested. As this Court did in Baldwin , the Cianci panel did not delineate which specific parts of the subsection were applicable since, pursuant to Section 9765, it was not required to evaluate which specific portions the Commonwealth actually proved. Id . at 314. Rather, the statute instructed the requisite question was how each statute could be violated. Id . at 314-315. Since there are ways in which a defendant could commit REAP without committing aggravated assault pursuant to Section 2702(a)(1), the panel found Appellant's argument inapposite. Id . at 315.
Appellant appealed, and we granted allocatur to review one specific issue: "Did not the Superior Court err in construing 42 Pa.C.S. § 9765 in an overly broad manner to bar merger even though all of the elements of the [REAP] offense are contained within the elements of the statutory alternative of the Aggravated Assault offense for which [Appellant] was convicted?" Commonwealth v. Edwards, ––– Pa. ––––, 237 A.3d 978 (2020) (per curiam).
Appellant advances many of the same arguments brought before the Superior Court. He claims that under Baldwin , this Court held that the Legislature's intent in enacting Section 9765 indicates its focus on the elements of the offenses for which a criminal defendant has been convicted. Appellant's Brief at 10 (citing Baldwin , 985 A.2d at 835 ). Appellant then argues, based on the specific facts under which he was convicted, the elements of REAP merge into the second statutory alternative under Section 2702(a)(1) for causing serious bodily injury. Id . at 11.
In finding otherwise, Appellant argues the panel erroneously failed to engage in a statutory construction analysis. Id . at 13. Had it done so, Appellant argues, it would have found that Section 9765 does not preclude an analysis of the specific events that constitute the criminal activity for which a defendant is being sentenced. Id . at 15. Appellant argues this approach comports with the Baldwin decision, since the statutes at issue there did not contemplate two alternative types of prohibited conduct involving different elements. Id .
Moreover, Appellant argues the Superior Court's decision ignores the cautionary instruction offered by the Baldwin Court in footnote 6, which is that statutes containing many enumerated subsections, such as aggravated assault, should not be construed broadly. Id . at 15. Rather, where an offense is defined in many different ways, the specific elements of the particular offense which led to conviction should be considered and examined. In support, Appellant draws upon Justice Saylor's concurring opinion in Baldwin for the proposition that certain statutes require a determination of what statutory alternative the conviction rests on. Id . (quoting Baldwin , 985 A.2d at 839 ("Consequently, when assessing the appropriateness of merger, it is sometimes necessary to determine as a threshold matter which elements are in issue.")). Appellant also cites to federal case law and other Pennsylvania cases. However, these cases pre-date the enactment of our merger statute. See Whalen v. United States , 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), Rutledge v. United States , 517 U.S. 292, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), Commonwealth v. Anderson , 538 Pa. 574, 650 A.2d 20 (1994). Lastly, Appellant argues that any ambiguity in the interpretation of Section 9765 should be resolved in his favor under the rule of lenity.
As it did before the Superior Court, the Commonwealth agrees with Appellant that the elements of REAP merge into the specific subsection for aggravated assault under which Appellant was convicted, as it is appropriate under Section 9765 to examine the elements of the crimes as charged. It maintains the instant case presents the special circumstances under which this Court specifically cautioned in Baldwin . Commonwealth's Brief at 8. In accordance with the cautionary instruction in Baldwin , the trial court took care to determine Appellant was convicted of "Aggravated Assault – causing serious bodily injury." Id . at 9 (citing Trial Court Opinion, 10/16/18, at 17). Under such an examination, aggravated assault encompasses the elements of REAP. Id . at 9.
Further, the Commonwealth disputes the Superior Court's reliance on its decision in Cianci . Id . at 10. It argues the Cianci court failed to mention the Baldwin Court's rejection of the strict elements test, or its cautionary instruction. Id . Moreover, the Commonwealth distinguishes this case by pointing out the defendant there was found guilty of "Aggravated Assault – attempting to cause serious bodily injury." Id . The Commonwealth argues the Cianci panel adopted a strict, technical merger test in derogation of the test espoused in Baldwin , following instead a case pre-dating Baldwin . Id . Accordingly, the Commonwealth argues the Superior Court erred in relying upon Cianci and thus, its misinterpretation of Section 9765 should be rejected.
A claim that crimes should merge for sentencing purposes raises a non-waivable challenge to the legality of the sentence; thus, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Collins , 564 Pa. 144, 764 A.2d 1056, 1057 n.1 (2001) (citing Anderson , 650 A.2d at 21 ). As noted above, the Commonwealth's Crimes Code defines the relevant subsection of aggravated assault as follows:
§ 2702. Aggravated Assault
(a) Offense defined.—A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.
18 Pa.C.S. § 2702(a)(1). The REAP statute in its entirety reads:
§ 2705. Recklessly endangering another person
A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.
Finally, whether two offenses merge for sentencing is governed by Section 9765 of the Sentencing Code, which states the following:
§ 9765. Merger of sentences
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 (emphasis added). Thus, our analysis necessarily begins with a closer examination of the merger statute.
When construing a statute, we rely on the well-known tenets of statutory construction. It is well-settled that when interpreting a statute, the object of construction is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921(a). The plain language of a statute is the best indicator of such intent. 1 Pa.C.S. § 1921(b). When ascertaining the intent of the General Assembly, there is a presumption that the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable. 1 Pa.C.S. § 1922(1). Furthermore, the words of a statute shall be construed according to rules of grammar and according to their common and approved usage. 1 Pa.C.S. § 1903(a). Every statute shall be construed, if possible, to give effect to all its provisions. 1 Pa.C.S. § 1921(a). We will only look beyond the plain meaning of the statute where the words of the statute are unclear or ambiguous. 1 Pa.C.S. § 1921(c). Finally, we also presume that when enacting legislation, the General Assembly is familiar with extant law. White Deer Twp. v. Napp, 603 Pa. 562, 985 A.2d 745, 762 (2009).
As we have held, "a plain reading of Section 9765 reveals the General Assembly's intent that crimes with different statutory elements be punished separately." Baldwin , 985 A.2d at 831. Section 9765, itself a provision guiding our statutory construction, prescribes that we must consider the statutory elements of the offenses pursuant to which a party was convicted. See Anderson , 650 A.2d at 21 ("Generally, the doctrine of merger is a rule of statutory construction designed to determine whether the legislature intended for the punishment of one offense to encompass that for another offense arising from the same criminal act or transaction. If the legislature were to tell us that crime A merges into crime B, the problem would not arise, for the legislative intent would be manifest. It is in cases where the legislature has not given direction that we must devise a rule.").
Contrary to Appellant's suggestion, Section 9765 does not require an evaluation of the specific facts as applied to the elements. Had the General Assembly so required, it would have included language instructing us so. Instead, the Legislature's guidance dictates that our analysis begins and ends with the statutory elements of each offense. The elements of REAP and the specific elements of aggravated assault relevant herein, require different elements of proof. Aggravated assault, pursuant to the relevant subsection, requires a person to cause serious bodily injury or an attempt to cause such bodily injury under circumstances manifesting extreme indifference to the value of human life. 18 Pa.C.S. § 2702(a)(1). REAP, by contrast, requires a person to place another person in actual danger of death or serious bodily injury. 18 Pa.C.S. § 2705. As was explicated by the Superior Court in Cianci , it is possible to commit one crime without committing the other. Cianci , 130 A.3d at 782. Since all of the statutory elements of REAP are not contained in aggravated assault, they do not merge for sentencing purposes pursuant to Section 9765.
The dissent would adopt an "as-applied" approach, which requires the consideration of the case-specific facts underlying a conviction, to identify whether the statutory elements of two offenses require merger for sentencing purposes. See Dissenting Op. at 1140 (Donohue, J.). In support, Justice Donohue focuses on the "single criminal act" language of Section 9765, and concludes that such "text indicates that the facts of the case are relevant, if not controlling, with respect to the merger of convictions for purposes of sentencing." Id. at 1141. However, this approach artificially parses the statute, which mandates merger when "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." 42 Pa.C.S. § 9765 (emphasis added). Rather, the "single criminal act" language is a distinct prong that must be satisfied in order to determine if merger is appropriate. Thus, even if the "single criminal act" prong may require an examination of the underlying facts of the charged offenses, see Anderson , 650 A.2d at 22, such requirement does not control the second distinct prong of examining if all the elements of one offense are included in the other. We also find the dissent's reliance on Section 303.3(b) of the Sentencing Code, see Dissenting Op. at 1141–42 (Donohue, J.), unpersuasive, as an unnecessary external reference to ascertain legislative intent when the statute's text is unambiguous. See 1 Pa.C.S. §§ 1921(b) and (c). As just discussed, in no way does the plain language of the "elements" prong of Section 9765 suggest that our courts review the underlying facts of the charged offenses.
Our decision in Baldwin supports this conclusion. The Baldwin decision emphasized that our primary question when considering a merger issue is the text of our statutes, and not the individual facts underlying a party's conviction. See Baldwin , 985 A.2d at 833-837. In support of his argument, Appellant cites to a passage from Baldwin where this Court states the following: " ‘[ Section 9765 ] makes the legislature's intent with respect to merger manifest. That intent focuses solely on the elements of the offenses for which a criminal defendant has been convicted.’ " Appellant's Brief at 10 (quoting Baldwin , 985 A.2d at 835 ). The Baldwin Court offered this passage after considering statutes that did not prohibit multiple types of conduct within one subsection, as does Section 2702(a)(1). Appellant himself points out the differences between the statutes considered in Baldwin versus those considered instantly. Appellant's Brief at 13 ("What the panel ignored is that Baldwin did not involve an analysis of statutory alternatives for different sections or subsections of a statute..."). As the construction of the statutes considered in Baldwin differ from those considered here, we disagree with Appellant's interpretation of footnote 6. This passage, offered in dicta, reminds trial courts to be specific in their determinations regarding the particular subsection at issue. See Baldwin , 985 A.2d at 837, n.6 ("[W]hile Section 9765 indeed focuses on an examination of ‘statutory elements,’ we cannot ignore the simple legislative reality that criminal statutes often overlap and proscribe in the alternative several different categories of conduct ... [Consequently,] we caution that trial courts must take care to determine which particular ‘offenses,’ i.e. violations of law, are at issue in a particular case."). Admittedly, our merger doctrine has " ‘not [been] altogether harmonious.’ " Baldwin , 985 A.2d at 838 (Castille, J., concurring) (quoting Commonwealth v. Sparrow , 471 Pa. 490, 370 A.2d 712, 718 (1977) ). Before Section 9765, this Court struggled to articulate a workable rule in this arena. Compounding this issue is another legislative reality, which is that sometimes, our statutes are written in such a way so as to proscribe multiple types of conduct within each subsection. However, since the General Assembly enacted Section 9765 in 2002, the statute has evidenced the Legislature's intent on how sentencing courts must proceed when faced with a merger issue. Where, as here, an offense is defined within the same subsection by alternative acts or courses of conduct, we must defer to such legislative intent in doing so. See 1 Pa.C.S. § 1921(a). Should the Legislature intend otherwise, it is within its authority to create distinct offenses by separating those acts or courses of conduct into separate subsections. It is not for this Court to intrude on the legislative sphere to create exceptions based on specific factual scenarios that require second-guessing or speculation regarding the basis of a fact-finder's verdict. Any indication that this Court should deviate from such an analysis is thus dispelled when looking at the General Assembly's clear and unambiguous language. Since the Superior Court abided by the language of the statute, it did not, as both Appellant and the Commonwealth suggest, construe the statute in an overly broad manner to bar merger. Accordingly, we affirm the Superior Court's decision.
The dissent finds our analysis of Baldwin mistaken since the statutes at issue there did not involve "subcategorized offense convictions," like Section 2702(a)(1). Dissenting Op. at 1142–43 (Donohue, J.). In this regard, Justice Donohue criticizes our treatment of Baldwin ’s cautionary instruction in footnote 6, concluding that the instruction comes into play when "subcategorized offense convictions are at issue, as in the case at hand." Id. at 1144. In support, she notes, "in fact, footnote 6 includes aggravated assault as an example of a criminal statute that proscribes conduct in the alternative and therefore requires ‘examination of the elements of the crimes as charged.’ " Id. at 1144 (quoting Baldwin , 985 A.2d at 837 n.6 ). However, Baldwin specifically referenced "18 Pa.C.S. § 2702 (defining seven distinct violations of law)." Baldwin , 985 A.2d at 837 n.6 (emphasis added). Section 2702(a)(1), the language of which is unchanged since Baldwin was decided, was one of the seven then extant subsections defining the offense. See 18 Pa.C.S. § 2702(a)(1)-(7) effective: January 31, 2005 to December 23, 2012 . Thus, Baldwin does not stand for further deconstructing the elements of an offense within a definitional subsection of the charging statute. This distinction is further supported by Baldwin ’s citation in footnote 6 to Commonwealth v. Johnson , 874 A.2d 66, 71 n.2 (Pa. Super. 2005), which Baldwin described as a case that "recogniz[ed] that a particular subsection of a criminal statute, [i.e. , aggravated assault under Section 2701(a)(1) ], may merge with another crime as a lesser-included offense even though a different subsection of that same statute, [i.e. , aggravated assault under Section 2701(a)(2) ], may not." Baldwin, supra. (emphasis added).
See, e.g. , Kidnapping, 18 Pa.C.S. § 2901(a)(3) ("[A] person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with [the intention to] ... inflict bodily injury on or to terrorize the victim or another."); Criminal Trespass, 18 Pa.C.S. § 3503(a)(1)(i) ("A person commits [criminal trespass] if, knowing that he is not licensed or privileged to do so, he ... enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately secured or occupied portion thereof ...."); Robbery, 18 Pa.C.S. § 3701(a)(1)(iv) ("A person is guilty of robbery if, in the course of committing a theft, he ... inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury ...."); Corruption of Minors, 18 Pa.C.S. § 6301(a)(1)(i) ("[W]hoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, ... or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree.").
In response to this point, the dissent asserts that, despite the General Assembly's failure to place the subcategories of subsection (a)(1) into separate subsections, "their placement does not change the fact that the General Assembly identified two distinct theories of aggravated assault." Dissenting Op. at 1144 (Donohue, J.). This argument overlooks the fact that the Legislature specifically included the two theories of aggravated assault as subcategories within one subsection. When interpreting a statute, our Court must abide by, and cannot ignore, such plain language specifically chosen by the General Assembly. Baldwin ’s cautionary instruction did not concern the scenario involving subcategories of subsections. Therefore, Baldwin does not instruct us to examine the underlying facts of the charged offense when dealing with a statute that includes subcategorized offenses, such as Section 2701(a)(1) at issue here.
Chief Justice Baer and Justices Saylor and Dougherty join the opinion.
Justice Donohue files a dissenting opinion in which Justices Todd and Wecht join.
JUSTICE DONOHUE, dissenting
This case presents a conflict between two interpretations of Pennsylvania's merger statute, which provides:
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. Appellant Edwards advances an as-applied approach to identifying whether the statutory elements of two offenses require merger of the convictions. In contrast, the Majority adopts the Superior Court's facial approach. Because relevant statutory and administrative code provisions and this Court's jurisprudence support an as-applied approach, I respectfully dissent.
2002, Dec. 9, P.L. 1705, No. 215, § 5, effective in 60 days.
After driving his car into several vehicles and hitting a minor pedestrian, defendant Edwards was convicted of recklessly endangering another person ("REAP") and aggravated assault regarding the same minor pedestrian. The mens rea applicable to REAP is recklessness. See 18 Pa.C.S. § 2705 ; In Interest of Becker , 370 Pa.Super. 487, 536 A.2d 1370, 1372 (1988) (explaining that REAP contains "the following four elements: "(1) a mens rea—recklessness, (2) an actus reus—some ‘conduct’, (3) causation—‘which places', and (4) the achievement of a particular result—‘danger’, to another person of death or serious bodily injury."). The aggravated assault crime charged here is split into two separate theories and is not limited to one mens rea. 18 Pa.C.S. § 2702(a)(1). One possibility is where the actor attempts to cause serious bodily injury to another, which requires specific intent. See Commonwealth v. Alexander , 589 Pa. 487, 909 A.2d 1254, 1257 (2006) ("An attempt under § 2702(a)(1) requires a showing of some act, albeit not one causing serious bodily injury, accompanied by an intent to inflict serious bodily injury."). The second possibility is where the victim causes serious bodily injury "intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life." 18 Pa.C.S. § 2702(a)(1). As the Majority explains, a person may specifically intend to cause serious bodily injury and yet not expose the victim to actual danger or death, as required by REAP. However, under the second theory, actually causing serious bodily injury has necessarily subjected that same victim to the risk of serious bodily injury.
Here, the trial court imposed separate consecutive sentences on the REAP and aggravated assault (causes serious bodily injury) convictions. Sentencing Order, 7/25/2017; Trial Court Opinion, 10/16/2018, at 6. However, in response to Edwards raising a merger issue in his Pa.R.A.P. 1925(b) statement of matters complained of on appeal, the trial court agreed that the REAP and aggravated assault (causes serious bodily injury) convictions merged for sentencing purposes:
Once the prosecution has proved that an individual caused or attempted to cause serious bodily injury under circumstances manifesting an extreme indifference to the value of human life, it also
has established that the same person recklessly engaged in conduct that placed or may have placed another person in danger of death or serious bodily injury.
Trial Court Opinion, 10/16/2018, at 17–18. The trial court's imposition of consecutive sentences contradicts this recognition.
Without conducting a statutory construction analysis, the Superior Court affirmed the separate consecutive sentences for REAP and aggravated assault, concluding that REAP never merges with a Section 2702(a)(1) aggravated assault conviction because a person can place another person in danger of serious bodily injury without attempting to cause or actually causing serious bodily injury (and vice versa). Commonwealth v. Edwards , 229 A.3d 298 (Pa. Super. 2020). In support of its conclusion, the Superior Court cited Commonwealth v. Cianci , 130 A.3d 780, 782 (Pa. Super. 2015), in which the Superior Court concluded — again without conducting a statutory construction analysis — that convictions of REAP and aggravated assault (attempts to cause serious bodily injury) did not merge.
The Majority agrees with the Superior Court that REAP and aggravated assault do not merge for sentencing purposes because it is possible to commit one crime without committing the other. Applying a strict statutory elements test, the Majority concludes that Pennsylvania's merger statute requires the sentencing court to consider "the statutory elements of the offenses pursuant to which a party was convicted." Maj. Op. at 1137. Yet, the Majority does not treat the alternatives within subsection (a)(1) as separate offenses for purposes of conviction: Appellant was not convicted of attempting to cause serious bodily injury or causing such injury; "he was convicted of aggravated assault under Section 2702(a)(1) generally." Id. at 1135 (citing Edwards , 229 A.3d at 313 ). According to the Majority, " Section 9765 does not require an evaluation of the specific facts as applied to the elements. Had the General Assembly so required, it would have included language instructing us so. Instead, the legislature's guidance dictates that our analysis begins and ends with the statutory elements of each offense." Id . at 1137.
The Majority's approach is untenable on several fronts. First, the General Assembly mandates in the merger statute that "[n]o crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act [.]" 42 Pa.C.S. § 9765 (emphasis supplied). The highlighted text indicates that the facts of the case are relevant, if not controlling, with respect to the merger of convictions for purposes of sentencing. After all, one cannot identify the criminal act without examining the facts of the case. This construction of Section 9765 is supported by the fact that the General Assembly has subcategorized certain offense convictions "according to the particular circumstances of the offense ." 204 Pa. Code § 303.3(b) (emphasis supplied). "A subcategorized offense is assigned multiple offense gravity scores based on additional sentencing factors, which the court determines at sentencing. The court determines which Offense Gravity Score, located in § 303.15, applies. These offenses are designated by an asterisk [*]." Id. Notably, aggravated assault is a subcategorized offense. 204 Pa. Code § 303.15. In my view, the subcategorization of offenses indicates that the General Assembly intended consideration of the particular circumstances of an offense to be a component of sentencing and, correspondingly, the merger question. Accord Commonwealth v. Baldwin , 604 Pa. 34, 985 A.2d 830, 837 (2009) (observing that legislature has duty "to criminalize each type of conduct it determines is injurious to the state").
Contrary to the Majority's criticism that this construction of Section 9765 amounts to parsing, Maj. Op. at 1137–38 n.11, it is consistent with this Court's opinion that the General Assembly's "intent with respect to merger ... focuses solely on the elements of the offense for which a criminal defendant has been convicted ." Commonwealth v. Baldwin , 604 Pa. 34, 985 A.2d 830, 835 (2009) (emphasis supplied). In the case at hand, Edwards was convicted of aggravated assault (causes serious bodily injury). Granted, the "single criminal act" language of Section 9765 is a distinct component in determining merger, but common sense dictates that the underlying facts of a criminal case inform not only whether a single criminal act was committed but also whether a sufficient factual basis exists as to each element of a charged offense for purposes of conviction and sentencing. Accord Maj. Op. at 1137 ("Section 9765, itself a provision guiding ... statutory construction, prescribes that we must consider the statutory elements of the offenses pursuant to which a party was convicted."); Commonwealth v. Anderson , 538 Pa. 574, 650 A.2d 20, 22 (1994) ("[T]he same facts may support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser included offenses...."); Commonwealth v. Buffington , 574 Pa. 29, 828 A.2d 1024, 1031 n.11 (2003) (explaining that, in determining whether a particular crime is lesser included offense, the United States Supreme Court has deemed "the facts of a case as alleged in the charging document to be of significance where the crimes are defined as encompassing a range of acts or offenses").
The Majority's observes in a vacuum that the General Assembly "specifically included the two theories of aggravated assault as subcategories within one subsection," and this Court "must abide by, and cannot ignore, such plain language" when interpreting a statute. Maj. Op. at 1139 n.14. Even so, other than identifying the elements of a substantive offense in varying circumstances, the plain language of Section 2702 provides little to no guidance regarding construction of the merger statute, which is the statute at issue.
The Majority criticizes my reference to the Pennsylvania Code, 42 Pa.Code § 303.3(b) as "an unnecessary external reference to ascertain legislative intent when the statute's text is unambiguous," Maj. Op. at 1138 n.11. Indeed, "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S. § 1921(a). However, our rules of statutory construction do not prevent looking elsewhere for legislative intent where the words of a statute are clear and free from ambiguity. Rather, they provide that, when a statute is unambiguous, "the letter of it is not to be disregarded under the pretext of pursuing its spirit." Id. at 1921(b). Referring to the Pennsylvania Code is not a disregard of the letter of Section 2702(a)(1) under the pretext of pursing its spirit. In fact, the Pennsylvania Code is both relevant and persuasive in determining whether merger applies in the context of a subcategorized offense. Section 303.3(b) is vital to an understanding of the interplay between subcategorized offenses like Section 2702(a)(1) and sentencing. That interplay impacts merger. Addressing the "single criminal act" and "elements" prongs of the merger statute without an appreciation for the role played by the underlying facts in applying those components ignores the General Assembly's intent to focus "on the elements of the offense for which a criminal defendant has been convicted." Baldwin , 985 A.2d at 835.
Logic dictates that the General Assembly assigned distinct offense gravity scores for Section 2701(a)(1) because it recognized that the particular circumstances of the offense could result in an attempt to cause serious bodily injury or, as in this case, the causing of serious bodily injury. Here, without objection from the defense, the trial court considered the particular circumstances of Edward's REAP and aggravated assault offenses and then applied the higher offense gravity score that corresponds to the aggravated assault (causes serious bodily injury) subcategory, N.T., 7/25/17, at 4, rather than the lower offense gravity score that corresponds to the aggravated assault (attempts to cause serious bodily injury) subcategory. See 204 Pa. Code § 303.15 (setting offense gravity score for Section 2702(a)(1) aggravated assault (causes serious bodily injury) at 11 and offense gravity score for Section 2702(a)(1) aggravated assault (attempts to cause serious bodily) injury at 10). Clearly, an examination of the facts is necessary to determine which theory of aggravated assault is at issue. Similarly, an examination of the facts is necessary to determine which subcategory of aggravated assault the evidence supports so that the appropriate sentence may be imposed.
In short, approaching the merger of convictions along factual lines produces a sentence that is based in reality and consistent with legislative intent as expressed in the Crimes Code and Sentencing Code. The as-applied approach also promotes individualized sentencing. See Commonwealth v. Devers , 519 Pa. 88, 546 A.2d 12 (1988) (stressing that the duty to fashion appropriate, individualized sentences requires a trial court to balance considerations including, inter alia, nature and circumstances of crime). In contrast, a facial approach that bases merger on potential scenarios is disconnected from reality, conflicts with legislative intent by ignoring the criminal act and the particular circumstances of the offense, and offends the principle of individualized sentences.
Second, the Majority's analysis of Commonwealth v. Baldwin , 604 Pa. 34, 985 A.2d 830 (2009), is misguided. In that case, this Court considered firearm statutes that did not prohibit multiple types of conduct within one section, unlike Section 2702(a)(1). Consequently, the Baldwin Court did not have to "parse out which specific portions of [the firearms] statutes the Commonwealth actually proved and compare only those portions to one another to determine if merger was appropriate." Edwards , 229 A.3d at 314 ; Maj. Op. at 1135. Understandably, the Baldwin Court emphasized that the primary consideration when faced with a merger question is the text of the statutes, not the facts of the underlying conviction, because it was not faced with subcategorized offense convictions. Still, the Majority rejects Edwards’ reliance on the Baldwin Court's cautionary instruction that trial courts "must take care to determine which particular ‘offenses,’ i.e. violations of law, are at issue in a particular case" because the statutory constructions considered in Baldwin are different than Section 2702(a)(1). Maj. Op. at 1138 (quoting Baldwin , 985 A.2d at 835, 837 n.6 ). According to the Majority, footnote 6 in Baldwin simply "reminds trial courts to be specific in their determinations regarding the particular subsection at issue." Id. However, that cautionary instruction comes into play where subcategorized offense convictions are at issue, as in the case at hand. In fact, footnote 6 includes aggravated assault as an example of a criminal statute that proscribes conduct in the alternative and therefore requires "examination of the elements of the crimes as charged." Baldwin , 985 A.2d at 837 n.6. Accord 204 Pa. Code § 303.15 (identifying aggravated assault as a subcategorized offense).
Footnote 6 reads, in relevant part, as follows:
It is no coincidence that we decline to characterize Section 9765 in terms any broader than the statute's own language. It is, in the final analysis, an enactment of this Commonwealth's legislature that must be interpreted according to the rules of statutory construction, 1 Pa.C.S. § 1901, et seq. Labels, such as ‘pure elements test’ and ‘strict elements approach,’ have often led to greater mischief. ... [In Whalen v. United States , 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) ], the Court demonstrated a recognition that examination of the elements of the crimes as charged is sometimes necessary, especially when dealing with an offense that can be proven in alternate ways.
Therefore, while Section 9765 indeed focuses on an examination of ‘statutory elements,’ we cannot ignore the simple legislative reality that individual criminal statutes often overlap, and proscribe in the alternative several different categories of conduct under a single banner. See, e.g. , Aggravated Assault, 18 Pa.C.S. § 2702 (defining seven distinct violations of law); Involuntary Deviate Sexual Intercourse, 18 Pa.C.S. § 3123 (setting forth eight separate violations). Consequently, in such cases, we caution that trial courts must take care to determine which particular ‘offenses,’ i.e. violations of law, are at issue in a particular case. See, e.g. , Commonwealth v. Johnson , 874 A.2d 66, 71 n. 2 (Pa. Super. 2005) (recognizing that a particular subsection of a criminal statute may merge with another crime as a lesser-included offense even though a different subsection of that same statute may not).
Baldwin , 985 A.2d at 837 n.6.
Perhaps unwittingly, the Majority's response to my critique of its Baldwin analysis supports my position. Maj. Op. at 1138–39 n.12. The Majority acknowledges that Baldwin did not involve subcategorized offenses within a single subsection, as in the case of Section 2702(a)(1) aggravated assault. Thus, Baldwin is factually inapposite to the case at hand. Consequently, the Majority's observation that the language of Section 2702(a)(1) has remained "unchanged since Baldwin was decided" has no bearing on this case. Maj. Op. at 1138–39 n.12. Arguably, the General Assembly did not change the language of Section 2702(a)(1) postBaldwin because no change was needed in that the subcategorized offenses are readily identifiable as distinct offenses. Similarly, Johnson is distinguishable because it involved a different aggravated assault section. See Johnson , 874 A.2d at 71–72, n.2 (addressing merger of aggravated assault of police officer while in the performance of duty, 18 Pa.C.S. § 2702(a)(2), (c)(1), and attempted murder). In any event, the Majority does not resolve the conflict between its facial approach and the cautionary instruction in footnote 6 of Baldwin , which is relevant to this case in that this Court specifically referred to subcategorized offenses and advised trial courts to consider the underlying facts when ruling on the merger of such offenses.
As the Majority observes, the General Assembly did not place the subsection (a)(1) aggravated assault subcategories in separate subsections of Section 2702. Maj. Op. at 1139. Even so, their placement does not change the fact that the General Assembly identified two distinct theories of aggravated assault within one subsection of Section 2702. The key to understanding which subcategory is at issue is to examine the particular circumstances — the facts — of the offense. Justice Saylor recognized this evidentiary framework in his concurring opinion in Baldwin . Justice Saylor wrote,
[M]any criminal offenses may be established via alternative methods of proof, and therefore, can be said to encompass alternative elements. Consequently, when assessing the appropriateness of merger, it is sometimes necessary to determine as a threshold matter which elements are in issue.
Baldwin , 985 A.2d at 839 (Saylor, J., concurring). Here, upon accepting Edwards’ merger argument, the trial court did specify which subsection of the aggravated assault statute was at issue, i.e., subsection (a)(1), and it even went so far as to identify the aggravated assault (causes serious bodily injury) subcategory based on the criminal act and the particular circumstances of this case. Trial Court Opinion, 10/16/2018, at 6, 17.
Third, any reliance on Cianci as supporting a conclusion that merger is not warranted in this case ignores the fact that the Cianci court did not consider the narrow question of whether the aggravated assault (causes serious bodily injury) subcategory offense merges with REAP. Moreover, Cianci is an intermediate appellate court decision that does not withstand scrutiny under this Court's cautionary observations in Baldwin .
The criminal elements at issue in this case are recklessly engaging in conduct that placed another person in danger of death or serious bodily injury and causing serious bodily injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. 18 Pa.C.S. §§ 2705, 2702(a)(1). The merger statute requires that "all of the" elements of one offense fit within "the" elements of the other offense. 42 Pa.C.S. § 9765. It does not require that all of the elements of one offense fit within all of the elements of the other offense, especially where subcategorized offenses contain distinct elements and evidentiary proofs. Because REAP requires a person to act recklessly in conduct that places or may place another person in danger of death or serious bodily injury, all of the statutory elements of REAP are contained in the aggravated assault (causes serious bodily injury) subcategory.
Given the particular circumstances of his offenses, I conclude that Edwards’ REAP conviction merged with his aggravated assault (causes serious bodily injury) conviction. Thus, the trial court erred in imposing sentences for both REAP and aggravated assault, and the Superior Court erred in affirming. Because vacating Edwards’ consecutive sentence for REAP would "disrupt[ ] the overall sentencing scheme," I would remand for resentencing. Commonwealth v. King, ––– Pa. ––––, 234 A.3d 549, 572 (2020).
Justices Todd and Wecht join this dissenting opinion.