Opinion
No. 538 Middle District Appeal 2009.
Filed: December 29, 2009.
Appeal from the Judgment of Sentence, January 14, 2009, in the Court of Common Pleas of Lackawanna County, Criminal Division at No. CP-35-CR-0001831-2004.
BEFORE: FORD ELLIOTT, P.J., KLEIN, J. AND McEWEN, P.J.E.
¶ 1 Michael Greene appeals from the judgment of sentence of January 14, 2009, following his conviction of one count each of aggravated assault and simple assault. He was sentenced to life in prison without parole under Pennsylvania's "three strikes" law, after the trial court found that two prior convictions in Massachusetts qualified as "crimes of violence" as that term is defined under Pennsylvania law. However, the relevant Massachusetts statutes incorporate the kind of robberies that would not qualify for the three strikes law in Pennsylvania, as well as those that do. The robberies for which Greene was convicted under the Massachusetts statutes could have been crimes where the victim only suffered or was put in fear of only bodily injury rather than serious bodily injury, which would be a robbery under Pennsylvania law, but would not qualify as a strike for Pennsylvania's three strikes statute. Therefore, we find that the Massachusetts unarmed robbery and assault with intent to rob statutes do not qualify as substantially similar crimes of violence to relevant Pennsylvania law. As a result, we reverse Greene's life sentence and remand for resentencing.
18 Pa.C.S.A. § 3701(a)(iv) and (v).
M.G.L.A. 265 § 19(b); M.G.L.A. 265 § 20.
Traditionally, simply comparing statutory language will demonstrate whether statutes are substantially similar. This approach will not work in this instance because the Pennsylvania statute in question is only partially applicable to the three strikes law. Therefore, it must be determined if the facts underlying the out-of-state conviction make the conviction substantially similar to the applicable portions of the Pennsylvania statute.
¶ 2 A full discussion follows.
Facts and Procedure
¶ 3 As this Court stated in a prior memorandum disposing of Greene's first direct appeal:
On May 4, 2006, a jury convicted Appellant of one count of aggravated assault and one count of simple assault. The charges arose from an incident on May 4, 2004, where Appellant savagely attacked his girlfriend, Stacy Kardos.[Footnote 1] On November 17, 2006, the court imposed a life sentence pursuant to the 'three strikes' law, 42 Pa.C.S.A. § 9714.
[Footnote 1] The record reflects that the relationship between Appellant and the victim was marked by many incidents of domestic violence. The Pennsylvania Coalition Against Domestic Violence has filed a brief in support of the judgment of sentence.
Commonwealth v. Greene, 945 A.2d 761 (Pa. Super. 2007) (unpublished memorandum at 1-2), appeal denied, 598 Pa. 773, 958 A.2d 1047 (2008). On December 13, 2007, this Court affirmed appellant's convictions but remanded for resentencing. Id. We found that while appellant had 33 convictions in Massachusetts, the record failed to reflect that the trial court identified which of appellant's many prior convictions actually counted as "strikes" for purposes of Section 9714. Id. at 6-7. Accordingly, it was necessary to remand for further sentencing proceedings. Id. at 7. Our Supreme Court denied appellant's petition for allowance of appeal on September 30, 2008.
¶ 4 On December 16, 2008, the Honorable Michael J. Barrasse held a hearing on the matter including argument from counsel. Following that hearing, on January 14, 2009, the trial court issued an opinion and order resentencing appellant to life in prison without possibility of parole pursuant to Section 9714(a)(2). Specifically, the trial court determined that two of appellant's prior convictions in Massachusetts, one in 1977 for unarmed robbery and one in 1985 for assault with intent to commit robbery, were substantially similar to the equivalent Pennsylvania offenses enumerated in Section 9714; and, therefore, those convictions constituted "crimes of violence" triggering the mandatory sentencing provisions under that section. The trial court further determined that Section 9714's mandatory minimum sentence of 25 years' total confinement for a third strike was inadequate to safeguard the public; and, therefore, sentenced appellant to life in prison.
¶ 5 Timely post-sentence motions were denied on February 23, 2009, and on March 18, 2009, appellant filed a timely notice of appeal. Appellant was not directed to file a concise statement of errors complained of on appeal; however, we have the benefit of the December 16, 2008 hearing transcript, as well as the trial court's January 14, 2009 opinion.
Discussion
¶ 6 Pennsylvania's robbery statute reads as follows:
A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second degree;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
(v) physically takes or removes property from the person of another by force however slight.
¶ 7 The Pennsylvania statute, 42 Pa.C.S. § 9714(g), specifically excludes both subsections (iv) and (v) of robbery from the definition of a crime of violence which would qualify for the three strikes act. Therefore, it is not enough to say that the Massachusetts and Pennsylvania statutes are similar if a conviction under the Massachusetts robbery statute would be excluded from the Pennsylvania definition of a crime of violence. In making this inquiry it would be helpful if we could look at the relevant facts underlying Greene's convictions as we might be able to determine which portion of the statute is applicable in this particular case. However, the Commonwealth did not introduce any evidence of the Massachusetts crimes other than the docket entries. Therefore, we are left only to see if the Massachusetts convictions were robberies similar to those as defined under subsections (i), (ii) and (iii), where they would qualify under the three strikes act, or under subsections (iv) and (v), where they would not qualify. On the present record, other than looking at the statute, we cannot distinguish exactly what Greene did since the records are apparently long gone.
¶ 8 The first conviction at issue occurred in 1977. This conviction was for unarmed robbery. Chapter 265, Section 19 of the Massachusetts Criminal Code, "Robbery by unarmed person," provides, in relevant part, as follows:
Whoever, not being armed with a dangerous weapon, by force and violence, or by assault and putting in fear, robs, steals or takes from the person of another, or from his immediate control, money or other property which may be the subject of larceny, shall be punished by imprisonment in the state prison for life or for any term of years.
M.G.L.A. 265 § 19(b). (Emphasis supplied.)
In 1981, "steals or takes" was substituted for "steals and takes" and "or from his immediate control" was inserted. St. 1981, c. 678, § 4, approved December 22, 1981. These minor amendments do not affect the analysis.
The gravamen of the offense is the use of force. The essence of robbery is the exertion of force, actual or constructive, against another in order to take personal property of any value whatsoever, with the intention of stealing it from the protection which the person of that other affords.
Commonwealth of Massachusetts v. Jones, 426 N.E.2d 726, 727 (Mass. App. 1981) (quotation marks and citations omitted).
¶ 9 While the use of force could be a robbery under the Pennsylvania statute, if the force caused or threatened serious bodily injury, it could be just as easily a robbery under subsection (iv) and perhaps even under (v). Therefore, we cannot say it qualifies as a first strike.
¶ 10 Greene's other conviction which the trial judge considered a strike was a 1985 conviction of assault with intent to rob. Again, we know nothing about the facts and are left to consider the statute. That statute provides:
Whoever, not being armed with a dangerous weapon, assaults another with force and violence and with intent to rob or steal shall be punished by imprisonment in the state prison for not more than ten years.
M.G.L.A. 265 § 20. (Emphasis supplied.)
¶ 11 A brief glance at the annotations to this statute reveals that Massachusetts interprets "force and violence" to include the Pennsylvania reference to the use of force however slight. See Commonwealth of Massachusetts v. Ramos, (1978) 383 N.E.2d 526 (evidence sufficient where defendant grabbed at money in victim's hand while victim tugged back). Therefore, not only might the "force and violence" merely cause bodily injury without causing serious bodily injury which could put it under subsection (iv), "force and violence" could also include merely the use of force however slight, which would relate to subsection (v) of the Pennsylvania statute. Once again, as this could be a non-qualified robbery as well as a qualified robbery, it cannot count as a strike.
¶ 12 Therefore, it is not enough to say that the Massachusetts and Pennsylvania statutes are similar when half of the Massachusetts robbery statute is excluded from the Pennsylvania definition of a crime of violence and Massachusetts courts interpret "force and violence" as the equivalent of Pennsylvania's "force however slight." As it is just as likely that the prior robberies are dissimilar from those that qualify as a strike in Pennsylvania as they are similar, they cannot be counted as strikes.
I note that I joined in the opinion Commonwealth v. Taylor, 831 A.2d 661 (Pa. Super. 2003), which was cited by the Commonwealth to support affirmance. That case interpreted the federal robbery statute for the purposes of our three strikes law. The federal statute resembles the Massachusetts statute. However, Taylor pled guilty to armed bank robbery, when we know that Greene was not armed in the Massachusetts crimes. Taylor was sentenced to a 25 year term of imprisonment under the federal statute, which would only be possible if Taylor had been charged under the section of the federal statute which requires that the defendant assault a person or put them in jeopardy of their life by the use of a dangerous weapon or device. See 18 U.S.C. § 2113(d). Therefore, we know that under the circumstances of Taylor, because it was a gun-point robbery, the crime was similar to the crimes that trigger a third strike in Pennsylvania. Therefore, Taylor is distinguishable from the instant case even though both the federal and Massachusetts statutes use the term "force and violence."
Moreover, in Taylor, we were better informed of the facts underlying the defendant's conviction. Those facts fit under section 3701(a)(1)(ii) which requires that the criminal threaten the victim with or put the victim in fear of immediate serious bodily injury. Because we do not know the facts underlying Greene's prior conviction under Massachusetts law, and because the Massachusetts law includes language which could exclude the crime from being defined as a crime of violence, the three strikes law was improperly invoked.
¶ 13 As we reverse the application of the three strikes law in this case, we need not reach the issues of whether the issue of the prior convictions need be determined by a jury, or whether the trial judge was correct in determining that 25 years was insufficient to protect society considering Greene's prior record.
Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington, 542 U.S. 296 (2004).
¶ 14 Judgment of sentence reversed. Matter remanded for resentencing without the application of the three strikes act. Jurisdiction relinquished. ¶ 15 FORD ELLIOTT, P.J., files a Dissenting Statement.
¶ 1 I respectfully dissent. I agree with the trial court that the statutes are substantially equivalent. See Commonwealth v. Northrip, 945 A.2d 198, 208-209 (Pa.Super. 2008), appeal denied, 598 Pa. 788, 959 A.2d 929 (2008), quoting Commonwealth v. Ward, 856 A.2d 1273, 1277 (Pa.Super. 2004) ("the offenses do not identically have to mirror each other but must be substantially equivalent to invoke operation of 42 Pa.C.S. § 9714."). While the Massachusetts unarmed robbery statute does not explicitly require the threat of immediate serious bodily injury, "The conduct prohibited by both statutes, the resort to such force and intimidation to accomplish the individual's purpose of taking, is the same." Commonwealth v. Taylor, 831 A.2d 661, 666 (Pa.Super. 2003), citing United States v. DeLeo, 422 F.2d 487 (1st Cir. 1970), cert. denied, 397 U.S. 1037 (1970) (footnote omitted) (comparing Pennsylvania's robbery statute with 18 U.S.C. § 2113, the federal bank robbery statute, which requires a taking "by force and violence, or by intimidation"). See also Ward, supra at 1277-1278 (finding the threat or immediate fear of serious bodily injury to be implicit in the New York State offense of robbery; "both statutes advance the public's interest in protecting citizens from serious injury or the threat thereof"). ¶ 2 Similarly, with regard to appellant's 1985 conviction for assault with intent to rob, I believe appellant's argument ignores the plain wording of the Massachusetts statute which requires "force and violence," implying more than a mere taking or removing of property by force however slight. In Commonwealth v. Ordway, the Massachusetts Supreme Court held that snatching money from the victim's hand, and thereby touching his hand, was not an assault with force and violence. 66 Mass. 270, 1853 WL 6523 (Mass. 1853). This belies appellant's contention that the Massachusetts assault with intent to rob statute is equivalent to Subsection (v) of Pennsylvania's robbery statute.
¶ 3 For these reasons, I would find that the crimes in question are substantially equivalent within the meaning and purpose of 42 Pa.C.S.A. § 9714, and therefore, the mandatory sentencing provisions of Section 9714 apply. I do not believe it is necessary to scrutinize the facts underlying appellant's Massachusetts convictions. See Northrip, supra ("The test to determine whether an out-of-state offense is an equivalent of a Pennsylvania offense requires the sentencing court to compare the elements of the crimes, the conduct prohibited by the offenses, and the underlying public policy behind the two criminal statutes."). I also note that appellant's prior record, which includes 92 arrests and 36 convictions (notes of testimony, 11/17/06 at 12), indicates that appellant is precisely the type of serial offender the legislature envisioned in enacting the three strikes statute: "[T]he purpose of section 9714 is to deter violent criminal acts by imposing harsher penalties on those who commit repeated crimes of violence." Taylor, supra at 665, quoting Commonwealth v. Eddings, 721 A.2d 1095, 1100 (Pa.Super. 1998).