Com. v. Polanco-Cano, I.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ISRAEL POLANCO-CANO
Appellant No. 463 MDA 2017
Appeal from the Judgment of Sentence February 6, 2017
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0005802-2015
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 22, 2017
Israel Polanco-Cano appeals from his judgment of sentence,1 entered
in the Court of Common Pleas of Lancaster County, following his convictions
for aggravated assault2 and attempted criminal homicide.3 Because Poanco-
Cano’s aggravated assault conviction should have merged, for sentencing
purposes, with his attempted criminal homicide conviction, we vacate in part
and affirm in part.
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1
Polanco-Cano was originally charged with possession of a firearm (18
Pa.C.S. § 907(b)) and possession of a controlled substance (35 P.S. § 780-
113(a)(16)). However, the Commonwealth nolle prossed these charges
prior to trial.
2
18 Pa.C.S. § 2702(a)(1) (F1).
3
18 Pa.C.S. § 901(a); 18 Pa.C.S. § 2501(a).
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On October 2, 2015, officers from the Lancaster City Bureau of Police
were dispatched to a residence where a disturbance had been reported.
When Officer Steven Alexander arrived on the scene, he located the victim
who had multiple stab wounds to her head, ear, neck, forearms, chest and
shoulders. Another officer on the scene located the suspect, later identified
as Polanco-Cano, with blood-covered arms and lacerations to his right hand.
The victim identified Polanco-Cano as her assailant, claiming that he had
stabbed her with a knife almost 25 times when he refused to leave her
friend’s apartment at her request. The police searched Polanco-Cano and
found seven small bags of heroin on his person. The victim underwent
emergency surgery for the severe stab wounds to her body.
On November 2, 2016, Polanco-Cano was tried before a jury. The jury
found him guilty of the above-stated offenses. On February 6, 2017, the
trial court sentenced Polanco-Cano to 16 to 40 years’ imprisonment for
attempted homicide, and to a concurrent sentence of 6 to 12 years in prison
for aggravated assault. Polanco-Cano filed a timely notice of appeal and
court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal. He presents the following issue for our review: Did the trial
court illegally impose sentences4 for both criminal attempt to commit
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4
A claim that crimes should have merged for sentencing purposes
challenges the legality of a sentence, which cannot be waived.
Commonwealth v. Duffy, 832 A.2d 1132 (Pa. Super. 2003). When
reviewing a claim challenging the legality of a sentence, this Court’s
(Footnote Continued Next Page)
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homicide and aggravated assault, where aggravated assault should have
merged with attempted homicide?
Pursuant to the merger doctrine,
[n]o 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.A. § 9765. The true test for determining whether particular
crimes merge is not whether criminal acts are successive steps in a
sequence of acts, but whether one crime necessarily involves the other.
Commonwealth v. Cavanaugh, 420 A.2d 674, 676 (Pa. Super. 1980).
In Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994), the
defendant shot the victim in the neck while she was preparing dinner.
Defendant was convicted of aggravated assault, criminal attempt to murder,
and possession of an instrument of crime. On appeal, our Court found that
the crimes of aggravated assault and criminal attempt to murder did not
merge because the former crime was not a lesser included offense of the
latter, and because the two crimes required distinct mental states. On
appeal, the Supreme Court reversed, finding that “in the case at bar, [the
defendant] committed only one criminal act. He shot [the victim] and
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(Footnote Continued)
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).
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critically injured her by his commission of that single act.” Id. at 23. The
Court then compared the elements of the two offenses and concluded that
the offense of aggravated assault is necessarily included within the offense
of attempted murder; every element of the former is subsumed in the
elements of the latter. Id. at 24. Likewise, the court found that the intent
necessary to establish attempted murder is greater than and “necessarily
includes the intentional, knowing, or reckless infliction of serious bodily
injury, the intent required for aggravated assault.” Id. Thus, the court
found that the crimes merged for sentencing purposes.
After Anderson, our Court decided Commonwealth v. Wesley, 860
A.2d 564 (Pa. Super. 2004), which examined the merger issue in the context
of whether two crimes arose from a single criminal act. In Wesley, the
Court found that merger was not warranted where the defendant’s actions
constituted two separate criminal acts where the defendant first committed
aggravated assault by shooting the victim in the back and, as the victim
turned to pick up his son, moments later committed attempted murder when
he fired the gun which blew off the victim’s finger and then fired the gun five
more times at the victim, hitting him in the stomach and leg. Id. at 593.
We find this case more analogous to the facts in Anderson than
Wesley. Here, the victim testified that after she punched Polanco-Cano and
asked him to leave her friend’s apartment, he grabbed her by the hair,
started shaking her, and then started stabbing her in the arm with a knife.
N.T. Jury Trial, 11/2/2016, at 109. At the same time the stabbing began,
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the victim fell to the floor where Polanco-Cano continued to stab her in the
neck. Id. at 110. At that point, fearing for her life, the victim started
fighting back. She grabbed a chair and hit him with it. Id. The victim fell
to the floor again and the two continued to fight. Id. at 111. Eventually the
victim hit Polanco-Cano with a little corner table and she was able to escape.
Id. The victim testified that she believed Polanco-Cano stabbed her a total of
25 times. Id.
Here, the facts illustrate that the one criminal act, aggravated assault,
necessarily included the other criminal act, attempted criminal homicide.
Wesley, supra; Cavanaugh, supra. Polanco-Cano stabbed the victim
twenty-five times during one criminal episode; the actions were predicated
upon a single act, fifteen to twenty-five stabbings. Cf. Commonwealth v.
Belsar, 676 A.2d 632 (Pa. 1996) (where defendant shot victim five times,
paused to look for victim’s car keys, then kicked victim, court found that
these were two separate criminal acts justifying separate sentences).
Moreover, both the aggravated assault conviction and the attempted
criminal homicide conviction were based upon these multiple stabbings as
charged in the criminal information.5 Commonwealth v. Jenkins, 96 A.3d
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5
Under the description of the acts for each of the two offenses, the criminal
complaint states that:
[T]he [defendant] did stab the victim in the back of her head
once, once in her left ear nearly severing it, once into the back
of her neck, both of her forearms four times each, once deep
(Footnote Continued Next Page)
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1055 (Pa. Super. 2014) (court must reference crime as charged by
Commonwealth to determine whether defendant’s actions constituted single
criminal episode for purposes of merger). Thus, we conclude that the crime
of aggravated assault should have merged, for sentencing purposes, with
the crime of attempted homicide.
Convictions affirmed. Judgment of sentence for aggravated assault
vacated. Jurisdiction relinquished.6
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2017
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(Footnote Continued)
into her chest, twice into her rear left shoulder and once into her
rear right shoulder.
Police Criminal Complaint, 10/3/2015, at 3.
6
We need not remand for resentencing because the trial court ordered
Polanco-Cano’s aggravated assault sentence to run concurrent to his
sentence for attempted homicide; thus, there is no disruption of the
sentencing scheme. See Commonwealth v. Murphy, 462 A.2d 853 (Pa.
Super. 1983).
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