Com. v. Johnson, L.

J-S31023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LESTER LERINGO JOHNSON,
Appellant No. 888 MDA 2015
Appeal from the Judgment of Sentence April 20, 2015
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001084-2013
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
CONCURRING AND DISSENTING MEMORANDUM BY SHOGAN, J.:
FILED JULY 26, 2016
I join the Majority’s disposition in all respects apart from its conclusion
that counts two and three merge for purposes of sentencing. Thus, I concur
in part and respectfully dissent in part.
“When a criminal act has been committed, broken off, and then
resumed, at least two crimes have occurred and sentences may be imposed
for each.” Commonwealth v. Shank, 883 A.2d 658, 671 (Pa. Super.
2005). “To hold that multiple assaults constitute only one crime is to invite
criminals ... to brutalize their victims with impunity.” Id. (citation omitted).
“So long as the crimes are not greater or lesser included offenses,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S31023-16
defendants are liable for as many crimes as they are convicted of and may
be sentenced for each such crime.” Id. (citation omitted).
After review, I agree with the trial court’s determination that counts
two and three do not merge as Appellant committed two discrete crimes.
First, Appellant struck R.K. in the head with his fist. Then, after the child fell
to the floor, instead of ceasing his assault, Appellant chose to kick the child
three times in the abdomen.
Thus, because I agree with the trial court that the punching and the
kicking were separate events, I would affirm Appellant’s judgment of
sentence in its entirety on the basis of the trial court’s opinion.
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