DocketNumber: 370
Judges: Brosky, Rowley, Olszewski
Filed Date: 2/27/1986
Status: Precedential
Modified Date: 10/19/2024
OPINION OF THE COURT
This is an appeal from the judgment of sentence entered following appellant’s guilty plea to robbery [18 Pa.C.S. § 3701(a)(l)(ii) ], carrying firearms on public streets or public property in Philadelphia [18 Pa.C.S. § 6108], and possession of an instrument of crime [18 Pa.C.S. § 907(a) ]. Appellant was sentenced to 5V4 years to 20 years imprisonment on the robbery charge. The 5V4 year minimum sentence included 24 months pursuant to the deadly weapons enhancement provision of the Sentencing Guidelines. [204 Pa.Code § 303.4]. A consecutive term of 1-2 years imprisonment for possession of an instrument of crime and another consecutive term of 1-2 years imprisonment for carrying firearms on public streets or public property in Philadelphia were also imposed.
Appellant raises two issues on appeal: 1) that the court erred by imposing any sentence for carrying firearms on public streets or public property in Philadelphia because that crime merged with either the crime of robbery or the possession of an instrument of crime; and 2) that the court erred by imposing two consecutive sentences for robbery
In Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985), an en banc panel of this Court reassessed the common law doctrine of merger. The Court stated that
[i]n order to find that separate statutory offenses merge, we must ... determine not only that the crimes arose out of the same criminal act, transaction, or episode, but also that the statutes defining the crimes charged were directed to substantially the same harm or evil____ Obviously if a defendant has committed several discrete criminal acts, he may then be punished separately for each of them despite their close relationship in a single criminal episode, as long as each act is a separate injury in itself.
Id., 344 Pa.Superior Ct. at 126-28, 496 A.2d at 41-42. If the crimes involve separate criminal acts, the first element of the merger test is not satisfied and the crimes do not merge. “Even if the defendant’s criminal conduct consists of a single physical act, however, the merger doctrine does not bar separate punishments if there are substantially different interests of the Commonwealth at stake, and the defendant’s act has injured each interest.” Id., 344 Pa.Superior Ct. at 127-29, 496 A.2d at 42. Thus, application of the merger doctrine is a two step process. First, the court must determine whether more than one discrete criminal act is involved. Secondly, if the defendant committed only one criminal act, the court must then determine whether the Commonwealth had only one interest that was injured by the single criminal act. If more than one Commonwealth interest was injured, the doctrine of merger does not apply.
The legislature has the exclusive power not only to define criminal offenses in order to protect the Commonwealth, but also to determine the punishment to be imposed for those offenses. See Williams, Id., and cases cited therein, 344 Pa.Superior Ct. at 126-27, 496 A.2d at 41. Therefore, under the common law merger doctrine, if the legislature has authorized duplicitous punishment, sentencing for only one criminal act but under two separate statutory provisions is proper and forecloses the applicability of the merger doctrine.
The weapons enhancement provision is not a legislative definition of a criminal offense but is a legislative determination of punishment to be imposed following convictions for certain crimes. The provision prescribes no criminal conduct and does not make the use of a weapon in the commission of certain crimes, including robbery, an element of the crime, but serves only to define the minimum punishment to be imposed when certain crimes are committed. Therefore, it is a legitimate exercise of legislative authority. Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985); see also Commonwealth v. Cannon, 508 Pa. 22, 493 A.2d 1356 (1985); Commonwealth v. Woods, 508 Pa. 294, 495 A.2d 539 (1985); 42 Pa.C.S. § 9712(b). No merger problem arises when the weapons enhancement provision is applied because it is not a second or separate punishment from that imposed for the underlying offense. It is solely a legislative mandate for a minimum sentence for the underlying offense.
The robbery and possession of implements of a crime charges, although based on the same criminal act, do not merge because the statutes defining each charge were adopted to protect different interests of the Commonwealth. The essential elements of robbery (as charged here) are that a theft be committed and that there be a threat of imminent serious bodily injury. [18 Pa.C.S. § 3701(a)(1)(h)]. Thus, the harm against which the statute protects is the deprivation of property by threatened or actual physical harm which may not involve any instrument of crime. The possession of implements of a crime charge, however, requires the possession of certain objects whose primary use is the commission of a crime and the intent to commit such a
Judgment of sentence affirmed.
. Appellant does not assert that the separate sentences violate the Double Jeopardy Clause of the Pennsylvania or United States Constitution.