Commonwealth v. Edwards

256 A.3d 1130

COMMONWEALTH of Pennsylvania, Appellee

v.Mark EDWARDS, Appellant

No. 26 EAP 2020

Supreme Court of Pennsylvania.

Submitted: January 22, 2021

Decided: August 17, 2021

Keir Nyree Barros-Bradford, Esq., Robin S. Forrest, Esq., Philadelphia, Aaron Joshua Marcus, Esq., Leonard Sosnov, Esq., Defender Association of Philadelphia, Harrisburg, for Appellant.

Lawrence Jonathan Goode, Esq., Philadelphia, Andrew Joseph Greer, Esq., Jessica Attie Gurvich, Esq., Philadelphia District Attorney's Office, Appellee

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE MUNDY

In this case, we construe our merger statute, 42 Pa.C.S. § 9765,¹ and consider for sentencing purposes whether Appellant's conviction for Recklessly Endangering Another Person (REAP), 18 Pa.C.S. § 2705,² merges into his conviction for Aggravated Assault pursuant to 18 Pa.C.S. § 2702(a)(1).³ More precisely, we consider whether the Superior Court correctly evaluated the statutory elements of each crime for which Appellant was convicted, rather than the particular proven facts, in determining merger was not appropriate. For the reasons that follow, we affirm the Superior Court's decision regarding the discrete issue before us.

The lower courts summarized the relevant factual and procedural history as follows:

[O]n Saturday, August 15, 2015, just before 7:00 p.m., a tan 2004 Ford Mercury Grand Marquis occupied by a single male driver travelled at a high rate of speed and struck a moving vehicle occupied by two adults and one child in a residential neighborhood near the corners of Large Street and Magee Avenue in Northeast Philadelphia. Eyewitnesses observed that following the striking of the first occupied vehicle, the vehicle, ... [the] Marquis, then continued to travel erratically at a high rate of speed and without stopping, turned from Magee Avenue and onto the 6600 block of Sylvester Street[,] where it collided with multiple parked vehicles along the way.

After hitting numerous parked cars, witnesses saw this same vehicle strike a six[-]year[-]old child who had been riding her bike and playing on the sidewalk near her home located within the same block. The force of this collision sent this slight and small child flying into the air and landing head first in a neighbor's side garden. Appellant ... was then observed unsuccessfully attempting to escape by driving the vehicle into another parked car[,] which blocked his exit. Appellant was seen immediately thereafter leaping from the driver's side of the car and running on foot away from the path of destruction he caused.

The injured child's mother ... reported that just before the crash she heard the screeching of an approaching vehicle as it swerved and sped down the 6600 block of Sylvester Street where she was standing in front of her home. As she saw the vehicle striking numerous parked cars, she ran immediately toward her daughter in an attempt to pull her from the sidewalk to safety. ... As [Mother] ran to her daughter[,] she saw the back of the male driver of the striking vehicle as he exited the driver[‘s] side of the otherwise unoccupied vehicle and [ran] away from his misdeeds.

Commonwealth v. Edwards , 229 A.3d 298, 300-303 (Pa. Super. 2020).

At the conclusion of a bench trial, Appellant was found guilty on all charges, which included one count of aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(1), and one count of REAP pursuant to 18 Pa.C.S. § 2705.⁴ Prior to sentencing, the presiding judge directed the completion of presentence evaluations and mental health evaluations. On July 25, 2017, a sentencing hearing was conducted. After hearing testimony and conducting a review of all presentence and mental health evaluations, victim impact statements, and correspondence submitted on behalf of Appellant, he was sentenced to an aggregate term of ten to twenty-five years’ imprisonment.⁵ As it pertains to the issue before this Court, Appellant received consecutive sentences of: (1) six to twelve months’ incarceration for his REAP conviction, and (2) seven years and six months’ to twenty years’ incarceration for his aggravated assault conviction.

Appellant filed a timely post-sentence motion, which the trial court denied on October 18, 2017. On November 17, 2017, Appellant filed a timely notice of appeal, challenging the sufficiency of the evidence pertaining to his convictions for criminal mischief and the instant merger issue. Specifically, Appellant raised the following issue regarding merger: "Should not the sentence for aggravated assault and REAP have merged where 1) the two offenses meet the elements test set out in 42 Pa.C.S. § 9756 ; and 2) assuming arguendo the elements test was not met, Section 9756 is unconstitutional on its face and as applied, as it conflicts with the Pennsylvania judicial test for merger and violates separation of powers and double jeopardy rights under the Pennsylvania Constitution?" Appellant's Superior Court Brief at 3-4.

In his argument regarding merger, Appellant relied in part on a footnote in this Court's decision in Commonwealth v. Baldwin , 604 Pa. 34, 985 A.2d 830 (2009).⁶ In Baldwin , this Court considered whether carrying a firearm without a license, 18 Pa.C.S. § 6106,⁷ and carrying a firearm on the public streets of Philadelphia, 18 Pa.C.S. § 6108,⁸ should merge for sentencing purposes. Id . at 832. Baldwin argued that both crimes should merge where the same narrow set of facts established both crimes as any other interpretation would trigger double jeopardy concerns. Id . The Baldwin Court examined the text of each statute, and decided merger was not appropriate as each offense included an element that the other did not. Id . at 835 ("[ Section 9765 ] makes the legislature's intent with respect to merger manifest. That intent focuses solely on the elements of the offenses for which a criminal defendant has been convicted."). In footnote 6, the Court cautioned trial courts to take care in determining which particular violations of law are at issue in a given case based on the "simple legislative reality" that conduct prohibited by some statutes may overlap.⁹ Id . at 837.

The Superior Court unanimously reversed Appellant's four criminal mischief convictions, vacated the judgment of sentence, and remanded the case for resentencing. Commonwealth v. Edwards , 229 A.3d 298, 300 (Pa. Super. 2020). The panel concluded insufficient evidence existed to sustain the criminal mischief convictions since Appellant's damage to the idle neighborhood cars did not constitute tampering. Id . at 310. Upon examining the plain language of the statute, the Superior Court deemed "tamper" to constitute more than the mere damage Appellant caused when he crashed into several parked cars while travelling at a high rate of speed. Id .

With regard to merger, the panel concluded that Appellant's sentences for aggravated assault and REAP should not merge. Id . at 312. It noted Appellant's convictions arose from the same criminal act of striking the victim with his vehicle. Id . at 313. Thus, the question of merger hinged on whether all of the statutory elements of aggravated assault included the elements of REAP. The panel concluded it did not, as "there are ways an individual could commit aggravated assault under Section 2702(a)(1) without committing REAP and vice versa[.]" Id . at 315.¹⁰

In so deciding, the panel relied heavily on its decision in Commonwealth v. Cianci , 130 A.3d 780 (Pa. Super. 2015). In Cianci , the defendant was charged and convicted of both aggravated assault pursuant to 18 Pa.C.S. § 2702(a)(1) and REAP. Id . at 781. The Cianci panel concluded the sentences should not merge, since each crime required an element of proof that the other did not. Id . at 782. Specifically, it noted aggravated assault contained the element of serious bodily injury or an attempt to cause serious bodily injury. Unlike aggravated assault, REAP required the element of actual danger of death or serious bodily injury. Since it was possible to place another person in danger of serious bodily injury without attempting to cause or actually causing serious bodily injury (and vice versa), the Cianci panel concluded merger was not warranted. Id . at 782.

In the instant matter, the Superior Court panel rejected Appellant's claims that Cianci was distinguishable. Namely, it rejected Appellant's argument that the panel in Cianci did not consider the narrower question of whether a conviction under the "actually causing injury" portion of Section 2702(a)(1) merged with REAP. It explained Appellant was not convicted of "attempting to cause serious bodily injury" or "causing such injury intentionally, knowingly, or recklessly"—he was convicted of aggravated assault under Section 2702(a)(1) generally. Edwards , 229 A.3d at 313. The panel stated it remained unconvinced that Section 9765 required such parsing as Appellant suggested. As this Court did in Baldwin , the Cianci panel did not delineate which specific parts of the subsection were applicable since, pursuant to Section 9765, it was not required to evaluate which specific portions the Commonwealth actually proved. Id . at 314. Rather, the statute instructed the requisite question was how each statute could be violated. Id . at 314-315. Since there are ways in which a defendant could commit REAP without committing aggravated assault pursuant to Section 2702(a)(1), the panel found Appellant's argument inapposite. Id . at 315.

Appellant appealed, and we granted allocatur to review one specific issue: "Did not the Superior Court err in construing 42 Pa.C.S. § 9765 in an overly broad manner to bar merger even though all of the elements of the [REAP] offense are contained within the elements of the statutory alternative of the Aggravated Assault offense for which [Appellant] was convicted?" Commonwealth v. Edwards, ––– Pa. ––––, 237 A.3d 978 (2020) (per curiam).

Appellant advances many of the same arguments brought before the...