IN THE SUPERIOR COURT OF PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA,
DWAYNE B. RHOADS,
BRIEF OF APPELLANT
Appeal from the 3udgments of Sentence entered on September 14, 1992,
by the Court of Common Pleas of Centre County, Pennsylvania,
to no. 1990-1129
David Crowley, Esquire
Chief Public Defender
Attorney I.D. Number: 39141
Attorneys for Appellant Rhoads
Willowbank Office Building
420 Holmes Street
Bellefonte, Pennsylvania 16823-1488
STATEMENT OF THE QUESTION INVOLVED
I. WHETHER SEPARATE SENTENCES FOB TWO (2) DIFFERENT SUBSECTIONS OF THE SIMPLE ASSAULT STATUTE, WHERE THE UNDERLYING OFFENSE CONSISTS OF BUT ONE ACT, IS A LEGAL SENTENCE?
Answered in the affirmative by the Court below;
STATEMENT OF THE CASE
The following is an appeal from the ljudgments of sentence of the Honorable David E. Grine, Judge of the Centre County Court of Common Pleas to Criminal Information No, 1990-1129.
A. Procedural History of the Case:
Mr. Rhoads was arrested by Trooper Joseph Leiter, then of the Pennsylvania State Police--Rockview Barracks, on August 22, 1990 and charged with two (2) subsections of Aggravated Assault, Recklessly Endangering Another Person, two (2) subsections of Simple Assault and Furnishing Alcohol to Minors in connection with an incident in Spring
Township, Centre County, Pennsylvania, that day.
Mr. Rhoads proceeded through a jury trial on January 25, 1991 and was acquitted of Aggravated Assault, but convicted of Simple Assault, Recklessly Endangering Another Person, and Furnishing Alcohol to Minors, On April 15, 1991, he was sentenced to two (2) consecutive periods of incarceration of one (1) year to two (2) years for Simple Assault and Recklessly Endangering Another Person. A Motion to Modify that sentence was subsequently filed, argued, and denied. Whereupon an appeal was taken to this Honorable Court at no. 00294 Harrisburg, 1991. By Memorandum Opinion, the case was remanded to the Centre County Court of Common Pleas for resentencing as Simple Assault is a lesser included offense of Recklessly Endangering Another Person and should have merged for sentencing purposes.
Mr. Rhoads was resentenced on September 14, 1992 to two (2) consecutive periods of incarceration of one (1) to two (2) years for two (2) different subsections of the Simple Assault Statute [18 Pa.C.S.A. Sec 2701(a)(1) and (a)(2)]. He was not sentenced for the Recklessly Endangering Another Person offense, and received a consecutive six (6) month to one (1) year sentence for Furnishing Alcohol to Minors. Another Motion to Modify was timely filed and by Order of October 13, 1992, denied. Whereupon the instant appeal was filed.
B. Statement of Prior Determinations of Court:
By Order of September 14, 1992, Mr. Rhoads was sentenced to two (2) consecutive one (1) year to two (2) year sentences for two (2) different subsections of the Simple Assault Statute [18 Pa.C.S.A. Sec. 2701(a)(1) and (a)(2)]. By Order of October 13, 1992, a Motion to Modify Sentence was denied.
C. Name of Judge whose Determinations are te be Reviewed:
The Honorable David E. Grine, Judge of the Centre County Court of Common Pleas is the Judge whose determinations are to be reviewed.
D. Chronological Statement of Facts:
Mr. Bhoads was charged with two (2) counts of Bggravated Assault, two (2) counts of Simple Assault, one (1) count of Recklessly Endangering Another Person, and one (1) count of Furnishing Alcohol to Minors from an incident that occurred on August 22, 1990. In the early morning hours of that day, Mr. Rhoads accidentally shot Brian
Henry, a fourteen (14) year old minor boy, who was a visitor in his apartment. Mr. Henry survived.
A jury trial was held in Centre County Court on January 25, 1991. Mr. Rhoads was acquitted on two (2) counts of Aggravated Assault, but was convicted on charges of Simple Assault, Recklessly Endangering Another person and Furnishing Alcohol to Minors. The incident involving the furnishing of alcohol is a separate event from the single episode giving rise to the convictions for Simple Assault and Recklessly Endangering. On April 15, 1991, Mr. Rhoads was sentenced by the Trial judge, the Honorable David E. Grine, as follows:
Count 3, Simple Assault, 18 Pa,CfS,A. Sec. 2701(a)(1) -one (1) to two (2) years;
Count 4, Simple Assault, 18 Pa.CIS;A. Sec. 2701(a)(2) --one ii) to two (2) years to run concurrent with the sentence imposed to Count 3;
Count 5, Recklessly Endangering Another Person, 18 Pa.C.S,A. Sec. 2705 -- one (1) to two (2) years to run consecutive to Counts 3 and 4; and
Count 6, Furnishing Alcohol to Minors 18 Pa.C,S.A. Sec. 631C.l(a) -- three(3) to six (6) months, to run consecutive to the sentence in Counts 3 and 5.
Following the imposition of the above sentences, Mr. Rhoads filed a Motion to Reconsider Sentence on April 24, 1991. In that Motion, Mr. Rhoads contended that the Sentencing Court imposed an illegal sentence violating Mr. Rhoads' protections against double jeopardy by sentencing two (2) consecutive one (1) year sentences for the Simple Assault and Recklessly Endangering Another Person offenses. The Sentencing Court disagreed and denied Mr. Rhoads' Motion to Reconsider Sentence.
This Honorable Court by Memorandum Opinion of June 30, 1992, reversed and remanded for resentencing as Simple Assault merges with Recklessly Endangering Another Person. (Appendix "E"). Mr. Rhoads was resentenced to one (1) to two (2) years for Simple Assault, 18 Pa.C.S.A. Sec. 2701(a)(1), followed by a consecutive one (1) year to two (2) year sentence for Simple Assault, 18 Pa.C.S.A. Sec. 2701(a)(2), and a consecutive sentence for the Furnishing Alcohol to Minors offense which is not a subject of this appeal. (Appendix "A").
E. Statement of Orders or Other Determinations under Review:
Dwayne B. Rhoads seeks review of the Sentencing Orders of September 14, 1992 sentencing him to two (2) consecutive periods of incarceration in a State Prison for violation of the Simple Assault Statute [18 Pa.C.S.A. Sec. 2701(a)(l) and (a)(2)] (Appendix "A"). Mr. Rhoads also seeks review of the Order of October 19, 1992 denying his Motion to Modify that sentence (Appendix "B"), and the Opinion in Support of that Order dated February 29, 1993 (Appendix "C").
I. THE SENTENCING COURT ERRED IN SENTENCING DEFENDANT TO TWO CONSECUTIVE SENTENCES FOR TWO (2) SEPARATE SUBSECTIONS OF THE SIMPLE ASSAULT STATUTE WHERE THERE IS BUT ONE UNDERLYING ACT.
The Crimes Code, in pertinent part, 18 Pa.C.S.A. Sec. 2701, makes it a criminal offense if an actor:
(1) attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another;
(2) negligently causes bodily injury to another with a deadly weapon; or
(3) attempts by physical menace to put another in fear of imminent serious bodily injury.
It is uncontroverted that there was `but one act underlying the offense, and that was Mr. Rhoads' act of shooting Brian Henry. "[Defendant]. . . shot a 14 year old boy while drunk in his apartment and nearly killed him." (Sentencing N.T., 9/14/92, pp. 9-10). ". . . There are enumerable cases . . . in which a single act was found to support multiple
sentencing . . ." (Motion to Modify N.T., 10/6/92, p. 5). ". . . Where the same facts are used to support convictions for crimes having different elements, the crimes do not merge for sentencing purposes unless the same facts support convictions of lesser includes [sic] offenses." (Opinion and Order, Grine, J., 2/23/93 Appendix "C"). Most telling; however, is Trooper Leiter's hybrid Criminal Complaint charging: "SIMPLE ASSAULT,
CC/2701(a)(l), (2) M2, The actor negligently caused serious bodily injury to the victim with a deadly weapon. (Appendix "F").
The only issue on appeal is whether Mr, Rhoads can be consecutively sentenced on two different subsections of the same Criminal Statute for one act; Mr. Rhoads argues that such a sentence would be illegal as alternative pleading cannot provide the basis for separate punishments for violating one Criminal Statute.
The Supreme Court in Commonwealth v. Shannon, ___Pa. ___, 608 A.2d 1020 (1992) was faced with this identical issue as related to the Involuntary Deviate Sexual Intercourse Statute (18 Pa.C.S.A. Sec. 3123). Mr. Shannon was convicted of one act of Involuntary Deviate Sexual Intercourse on the basis that be exercised the threat of forcible compulsion [18 Pa.C.S.A. Sec. 3123(2)], and he did this to a person under the age of sixteen (16) years [18 Pa.C.S.A. Sec. 3123(5)].
The precedential value of Shannon is marred somewhat by the fact that Justice Cappy did not participate in the decision of the case, and Justices Nix and McDermott concurred only in the result. But there was only one dissent, and the Majority's reasoning is sound. It examined the wording of the Statute and analyzed it in terms of the Crimes Code provision (18 Pa.C.S.A. Sec.105) requiring Criminal Statutes to be construed in accordance with the fair import of their terms. It found the insertion of the word "or" at the end of the next to the last subsection of the Statute to mean that each subsection of the Statute serves to provide an alternative basis for the proscription of the singular harm of (in that case) Involuntary Deviate Sexual Intercourse. It held that the Sentencing Court is without authority to separately sentence for two of the alternative subsections. Shannon, supra, 608 A.2d at 1024.
The case sub judice lends itself to the identical analysis and conclusions. The singular harm is Assault. The Commonwealth can prove that by alternatively showing that the actor attempted to cause or intentionally, knowingly or recklessly caused bodily injury or negligently caused bodily injury with a deadly weapon. What the Commonwealth cannot do is seek duplicative sentences for the one harm that is capable of alternative proofs.
Justice Larsen's dissent in Shaonon is flawed to the extent that he analyzes the problem in terms of the doctrine of merger. He cites Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986) for the proposition that Rape and Statutory Rape do not merge for sentencing purposes. He also cites Commonwealth v. Sayko, 511 Pa. 610, 515 A,2d 894 (1986), for the proposition that Indecent Exposure, Indecent Assault, and Corrupting the Morals of a Minor do not merge for sentencing purposes. Shannon, supra, 608 A.2d at 1026. What distinguishes Rhodes and Sayko from the instant matter is the simple fact that those cases both involve different Statutes and not alternative subsections of the same Statute.
They are different societal harms because the legislature has separately defined them as such. Merger analysis does not apply here. Simple Assault, 18 Pa.C.S.A. Sec. 2701(a)(2), is not a lesser included offense of Simple Assault, 18 Pa.C.S.A. Sec. 2701(a)(l), because they are the same offense. The Commonwealth cited the Sentencing Court to Commonwealth v. Ritchey, 313 Pa.Super. 258, 459 8.2d 828 (1983) and Commonwealth v. Taylor, 346 Pa.Super. 599, 500 A.2d 110 (1985) for the proposition that Aggravated Assault, 18 Pa.C.S.A, Sec. 2702(a)(4), is not a lesser included offense of Aggravated Assault, 18 Pa;C.S.A. Sec. 2702(a)(1); and Commonwealth Ostolaza, 267 Pa.Super. 451, 406 A.2d 1128 (1979) for the proposition that Robbery, 18 Pa.C.S.A. Sec. 3701(a)(1)(v), is not a lesser included offense of Robbery, 18 Pa.C.S.A. Sec. 7701(a)(l)(ii). They are not lesser included offenses, they are the same offenses and not one of those cases authorizes separate punishment for the different subsections. In Ritchey, supra, this Honorable Court held that a defendant charged with Aggravated Assault, 18 Pa.C.S.A. Sec. 2702(a)(1), was not entitled to an additional jury instruction on Aggravated Assault, 18 Pa.C.S.A. Sec. 2702(a)(4), as such was not a lesser included offense. 429 A.2d at 830. In Taylor, supra, this Honorable Court, in finding Aggravated Assault, 18 Pa.C.S;B; Sec. 2702(a)(4), not to be a lesser included offense of 18 Pa.C.S.A. Sec. 2702(a)(1) held that the Commonwealth could not use proof of elements of (a)(4) (Possession of a Weapon) not alleged in its Information at the time of defendant's sentencing for his conviction of 18 Pa.C.S.A; Sec. 2702(a)(1). 500 A.2d at 115. In Ostolaza, supra this Honorable Court, in finding that Robbery, 18 Pa.C.S.A. Sec. 3701(a)(l)(v),`was not a lesser included offense of Robbery, 18 Pa.C.S.A. Sec. 3701(a)(1)(ii), reversed defendant's conviction for Robbery where the evidence to support (a)(ii) was insufficient and defendant was not charged with (a)(v), the appropriate subsection in terms of the facts of that case. 406 A,2d at 1130.
In Commonwealth v. Fry, 340 Pa. Super, 445, 490 A.2d 862 (1985), this Honorable Court, in finding subsection (a)(4) of the Driving Under the Influence Statute to be a distinct offense apart from 75 Pa.C.SIA. Sec. 3731(a)(1), held that a guilty verdict under either or both subsections was legally permissible, 490 A.2d at 863. It did not go so far as to say that having secured separate convictions for multiple subsections that the Sentencing Court could imposed separate sentences.
The Fourteenth Amendment to the United States Constitution makes its Fifth Amendment protections against double jeopardy applicable to this Commonwealth. See Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), The Fifth Amendment`provides:
...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb
Pennsylvania has its own constitutional provision against double jeopardy, Pennsylvania Constitution Article 1, Sec. 10. Within the context of the double jeopardy guarantee the State right is coextensive with the Federal right. See Commonwealth v. Goldhammer, 507 Pa. 236, 489 A.2d 1307 (1985). Double jeopardy protections have been held to consist of three (3) different guarantees: (a) protections against a second prosecution for the same offense after an acquittal, (b) protection against a second prosecution for the same offense after conviction, and (c) protection against multiple punishment for the same offense. See Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). It is a restraint on the Court and the prosecutor, but not the legislature. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L,Ed.2d 11187 (1975). The restraint on the legislature is statutory construction.
The legislature is bound by the fair meaning of the laws it drafts. This is codified, with respect to criminal statutes, in the preliminary provisions of the Crimes Code (18 Pa,C.S.A. Sec. 105). Had it desired to articulate different harms by recklessly causing bodily injury and negligently causing bodily injury with a deadly weapon, it certainly had the ability to do that by drafting different Statutes as it has done with: Rape, 18 Pa.C.S.A. Sec. 3121, Spousal Assault, 18 Pa.C.S.A. Sec. 3128, and Statutory Rape, 18 Pa.C.S.A. Sec. 2702, Simple Assault, 18 Pa.C.S.A, Sec. 2701, and Assault by Prisoner, 18 Pa.C.S.A. Sec. 2703, and Assault by life prisoner, 18 Pa.C.S.A. Sec. 2704; and Indecent Assault, 18 Pa.C.S.A. Sec 3126, and Aggravated Indecent assault, 18 Pa.C.S.A. Sec. 3125. Failing to do that, the Court is limited by the legislature's articulation that one Simple Assault offense is supported by proof that bodily injury was recklessly caused or negligently caused with a deadly weapon.
The legislature has determined that the offense is graded as a misdemeanor of the second degree, 18 Pa.C.S.A. Sec.2701(b). "A crime is a misdemeanor of the second degree if it is so designated (in the crimes code) or if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more then two years," 18 Pa.C.S.A. Sec. 106(b)(7). No amount of judicial remorse at the Commonwealth's inability to secure an Aggravated Assault conviction should justify a Simple Assault sentence above the statutory merimum two (2) years.