OPINION BY BOWES, J.:
Jesse Wade appeals from the judgment of sentence of ten to twenty years incarceration to be followed by two years probation imposed by the trial court after his convictions for robbery-threat of serious bodily injury, robbery of a motor vehicle, fleeing and eluding police, terroristic threats, and two counts each of possessing an instrument of crime ("PIC") and recklessly endangering another person ("REAP"). We affirm.
The trial court set forth the pertinent facts as follows.
Trial Court Opinion, 10/27/10, at 3-6.
After his arrest, Appellant filed an omnibus pre-trial motion seeking to suppress the victim's out-of-court identification as unduly suggestive. The suppression court declined to suppress the identification holding that based on the totality of circumstances the victim's identification was reliable. Specifically, the suppression court reasoned that the victim had sufficient time to observe Appellant, that the area was well lit by house and street lights and the interior light of the vehicle illuminated when the victim confronted Appellant. Additionally, the court highlighted that the victim testified that he was especially observant at the time because Appellant threatened his life as well as that of his friend and dog. Also, the court noted that the victim provided an accurate description of Appellant to police and demonstrated no uncertainty when identifying Appellant at the hospital. Lastly, the court set forth that the identification occurred shortly after the crime.
Following the suppression ruling, Appellant proceeded to a jury trial. The jury returned not guilty verdicts on two aggravated assault counts related to his driving of the stolen vehicle into the police cruisers, but found Appellant guilty of the remaining charges.
After sentencing, Appellant filed a motion for reconsideration related to the two robbery sentences. Prior to the court rendering a decision on that motion, Appellant filed a timely appeal at the other case numbers pertaining to the remaining charges herein. The court directed Appellant to file and serve a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant requested and received permission to file that statement after the court resolved his motion for reconsideration. The court denied Appellant's motion for reconsideration, Appellant appealed that decision, and filed his 1925(b) statement. The trial court authored a Pa. R.A.P. 1925(a) opinion. The matter is now ready for our review.
Appellant raises the following issues for our consideration.
Appellant's brief at 3.
Appellant's first challenge is to the trial court's ruling regarding the admissibility of the victim's out-of-court and in-court identifications. Appellant argues that the out-of-court identification was impermissibly suggestive and tainted because police told the victim that they had apprehended the person who stole his vehicle and the victim's initial observation of Appellant was at night and brief. Concomitantly, Appellant submits that the subsequent in-court identification was improper based on the taint from the previous identification.
The Commonwealth counters that officers at the hospital did not inform the victim that the individual in custody was the person responsible for stealing his car, and that show-up identifications with one suspect in a hospital are not inherently suggestive. According to the Commonwealth, the victim testified that police did not tell him that the person in custody was the individual who stole his vehicle. The Commonwealth maintains that the testimony by the victim that an officer told him over the telephone "we have some good news and we have some bad news. We have the person who took your car, but your car was totaled," N.T. Suppression Hearing, 11/12/09, at 21, did not unfairly influence the identification process.
Additionally, the Commonwealth asserts that even if the out-of-court identification was improper, the victim's in-court identification had a sufficiently independent basis to render it admissible. Like the suppression court, the Commonwealth points out that the initial confrontation occurred when the victim could view Appellant because there was street, house, and interior car lighting. Additionally, the victim was only a few feet from Appellant, whose face was uncovered. Lastly, the victim's description of the defendant was accurate
Our standard and scope of review in evaluating a suppression issue are settled.
Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa.Super.2010) (en banc). This Court analyzed the issue of suggestiveness and one-on-one identification in Commonwealth v. Moye, 836 A.2d 973 (Pa.Super.2003), as follows.
Id. at 976. Moreover, an in-court identification may be admissible despite the inadmissibility of a pre-trial identification where the in-court identification is not tainted by the prior identification. Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663 (1992). "In gauging reliability, we employ a totality of circumstances test." Id. at 668.
Assuming arguendo that the out-of-court identification was improper because police informed the victim that they arrested his assailant, we hold that the trial court properly admitted the in-court identification and Appellant is not entitled to relief. Approximately two hours after Appellant took the victim's car, police captured Appellant in the same vehicle that he stole. The victim observed Appellant from a close distance under not only street and house lights, but with the interior lights of his vehicle illuminating Appellant's face. The court also credited the victim's testimony that he was particularly observant at the time of the incident since Appellant threatened his dog, him, and his friend. Finally, the witness provided an accurate description.
In Appellant's second issue, he assails the trial court's calculation of the offense gravity score for his PIC convictions. Since the court did not sentence Appellant for his commission of that crime, the claim is moot and irrelevant.
Appellant next asserts that the court erred in allowing the jury to convict him on two counts of PIC based on his striking of multiple police officer's vehicles with the stolen car where he committed only one possessory act. According to Appellant, his possession of the car was a single continuous act. Appellant maintains that since there was no separation between his crashing of the car into multiple police officers, he could only be convicted of one possessory offense. He posits that Commonwealth v. Andrews, 564 Pa. 321, 768 A.2d 309 (2001), is instructive. The Commonwealth agrees that Andrews controls, but reasons that Appellant has waived the issue based on that decision. We agree.
Therein, our Supreme Court upheld two PIC convictions based on the defendant's possession of a firearm during two separate robberies that the defendant alleged were part of a continuous criminal transaction. The Andrews Court differentiated between possessory firearms offenses and PIC, noting that the touchstone of liability for PIC is the defendant's criminal purpose, i.e., if there are multiple criminal objectives the person may be convicted of multiple PIC charges.
Before getting to the merits of the defendant's argument, the Andrews Court was faced with determining whether the issue of multiple convictions for the inchoate crimes of conspiracy and PIC was a legality of sentence or sufficiency issue. More precisely, the underlying question was whether the defendant had multiple criminal objectives, which would permit sentencing on the multiple convictions. The Court held that since this determination was fact driven, the issue went to the sufficiency of the evidence. It then stated that where there was a question as to the continuous nature of the crime and whether there was more than one criminal act, the question must be submitted to the jury via appropriate jury instruction.
Applying Andrews to this case required Appellant to raise the issue before jury deliberations so that the court could instruct the jury that it needed to determine if Appellant's act of crashing the stolen car into multiple police cruisers consisted of one or two acts of PIC. Having failed to timely raise the issue, Appellant has waived this claim. See Andrews, supra.
The final position leveled by Appellant is that his convictions for robbery-threat of serious bodily injury and robbery of a motor vehicle merge for sentencing purposes and that the merger statute is violative of Pennsylvania's prohibition against double jeopardy. Merger questions implicate the legality of sentence. Commonwealth v. Baldwin, 604 Pa. 34, 985 A.2d 830 (2009). Additionally, the constitutionality of a statute presents a pure
Statutes are presumed constitutional. Commonwealth v. Craven, 572 Pa. 431, 817 A.2d 451 (2003). Appellant carries the heavy burden of showing that the statute clearly, palpably, and plainly violates the bar against double jeopardy. See Commonwealth v. Brown, 26 A.3d 485 (Pa.Super.2011). The statute at issue in the instant case reads
42 Pa.C.S. § 9765. In Baldwin, supra, our Supreme Court held that § 9765 prohibits the merger of sentences unless a strict two-part test is met. First, the convictions must be based on a single criminal act. Second, all of the statutory elements of one of the offenses must be included in the statutory elements of the other.
Before the passage of § 9765, our Supreme Court discussed the doctrines of merger and double jeopardy in Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994). The Anderson Court was faced with determining whether aggravated assault merged with attempted murder. It determined that the operative question was whether the crimes were greater and lesser-included offenses. This query, it held, was identical to an analysis of whether the double jeopardy clause of the federal constitution was violated. Citing to Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981), and its reference to Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932),
As our Supreme Court recognized in Baldwin, the legislature's adoption of § 9765 was a codification of the rule announced in Anderson. Baldwin, supra at 834-835 (discussing Commonwealth v. Jones, 590 Pa. 356, 912 A.2d 815 (2006) (OAJC)). Indeed, the Court in Anderson reasoned that "[t]he test depends solely on a comparison of the elements of the crimes charged, not on the similarity or even the identity of the evidence introduced at trial to establish their commission.... Only when all the elements of one crime are also elements of the other may they be classified as the `same offense.'" Anderson, supra at 23 n. 2.
Appellant submits that robbery-threat of serious bodily injury and robbery of a motor vehicle are cognate offenses, that the facts leading to his convictions for each
The Commonwealth responds first by setting forth that both robbery-threat of serious bodily injury and robbery of a motor vehicle contain additional elements from one another. Simply put, robbery-threat of serious bodily injury does not require a taking of a vehicle and robbery of a motor vehicle does not mandate proof of a threat of serious bodily injury. Secondarily, the Commonwealth argues that the facts establish two separate criminal acts. The Commonwealth asserts that the crime of robbery was complete when Appellant threatened the victim with serious bodily injury while attempting to steal the car. In contrast, the Commonwealth opines that the robbery of a motor vehicle was not completed until Appellant physically drove the vehicle away ten or fifteen minutes later.
Next, the Commonwealth contends that whether a crime is a cognate offense of another bears no relationship to the merger test and that Appellant's bare assertion that § 9765 is unconstitutional "fails to present a state constitutional claim." Commonwealth's brief at 32. Finally, the Commonwealth points out that the test for merger and double jeopardy in this context are identical; hence, even if the statute were determined to be unconstitutional, Appellant's claim would fail since neither crime is a lesser-included offense of the other.
Initially, we reject the Commonwealth's highly technical and novel argument that two separate criminal acts were at issue herein. Although creative, the analysis is untenable when closely examined. To demonstrate, imagine for example that Appellant was unable to get the car started after threatening the victim and exited the vehicle ten to fifteen minutes later, leaving the car parked. Would the Commonwealth not have charged Appellant with robbery of a motor vehicle? Perhaps not, but we believe that it would have been well within its authority to charge Appellant based on those facts. This is because Appellant took physical control over the vehicle in the presence of the victim. While in this hypothetical he did not drive the vehicle away, he nonetheless maintained illegal possession of the car from its rightful possessor in that person's presence. The fact that the car had not yet been removed does not indicate that a taking had not occurred. Indeed, "taking" is described as the "act of seizing an article, with or without removing it, but with an implicit transfer of possession or control." Black's Law Dictionary, 1467 (7th ed.1999) (emphasis added); see also Commonwealth v. George, 705 A.2d 916, 919-920 (Pa.Super.1998). Thus, we find the Commonwealth's argument that the robbery of the motor vehicle was not complete until Appellant drove the
Second, we disagree that Appellant has made a bare assertion that § 9765 unconstitutionally violates Pennsylvania's bar against double jeopardy. Appellant has discussed the applicable statute, its application in Baldwin, as well as Chief Justice Castille's concurring decision in Baldwin discussing his view of merger. In addition, Appellant has referenced and discussed Anderson, supra, our Supreme Court's seminal pronouncement on merger prior to the Baldwin case. While we acknowledge that Appellant has not strictly followed the command of Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991),
Further, the Commonwealth is on strong precedential footing when it maintains that the two robbery crimes are not greater and lesser-included offenses and that the merger and double jeopardy tests are identical. Anderson, supra.
Article 1, § 10 reads in relevant part, "No person shall, for the same offense, be twice put in jeopardy of life or limb." Similarly, the federal constitutional provision states, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb[.]" U.S. Const. amend. V. In Commonwealth v. Bostic, 500 Pa. 345, 456 A.2d 1320, 1322 n. 4 (1983),
The Pennsylvania prohibition against double jeopardy was inserted into the Pennsylvania Constitution in 1790 and for much of the history of Pennsylvania was interpreted only to apply to multiple prosecutions for capital cases. Commonwealth v. Henderson, 482 Pa. 359, 393 A.2d 1146 (1978); Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964) citing McCreary v. Commonwealth, 29 Pa. 323 (Pa.1857)
Further, even in one of the initial cases to set forth that the federal constitution and our state constitution were largely coextensive, our Supreme Court recognized that Pennsylvania's double jeopardy clause applied only to capital cases and "[t]he protection against successive prosecutions in non-capital cases was provided in this jurisdiction by the statutory pleas in bar of autrefois acquit and autrefois convict, Act of Mar. 31, 1860, P.L. 427 s 30; 19 P.S. 463." Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133, 1137 (1978) (OAJC). Accordingly, the Court held that "there is no basis for suggesting that the framers of our Constitution intended to provide a greater protection than that afforded under the Fifth Amendment." Id. at 1138. Nonetheless, federal double jeopardy
United States Supreme Court jurisprudence has held that multiple punishments for offenses that are the same is constitutionally permissible unless there is a clear legislative intent against such a practice. Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). As the Supreme Court stated in Hunter, "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Hunter, supra at 366, 103 S.Ct. 673. Moreover, our Supreme Court has held
Tarver, supra at 572. Viewing these cases together, one can readily discern that the federal prohibition against double jeopardy does not apply where a state legislature defines merger statutorily so long as the Blockburger test is not violated. Our merger statute merely codified the adoption by the Tarver/Anderson decisions of the Blockburger test and upholds the long-standing merger doctrine relative to greater and lesser-included offenses.
Instantly, robbery-threat of serious bodily injury and robbery of a motor vehicle each requires proof of a fact that the other does not. As we have previously provided, robbery of a motor vehicle does not require that a person be threatened with serious bodily injury and robbery-threat of serious bodily injury does not include the element of stealing or taking a vehicle. Therefore, the two robbery crimes at issue in the present case are not the same offense under the Blockburger test. Thus, only if our constitution provides broader protections than the federal constitution can Appellant's claim succeed.
In at least one context, our Supreme Court has interpreted the Pennsylvania constitutional provision against double jeopardy to provide broader protections than does the federal constitution. See Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321, at 325 (1992) (finding intentional prosecutorial misconduct designed to prejudice the defendant so that he is denied a fair trial will prevent re-trial). Smith, however, involved multiple prosecutions, not multiple punishments imposed after a single proceeding for the "same offense." Pointedly, Pennsylvania courts have historically viewed merger of punishments and Pennsylvania double jeopardy claims separately.
It was not until the decision in Tarver, supra, that sentencing merger and federal double jeopardy were conclusively viewed together. See Sparrow, supra at 719 n. 8, abrogated by Tarver, supra ("This Court has not had occasion to consider the question whether, following application of the Fifth Amendment's Double Jeopardy Clause to the states in Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), our `merger' decisions might satisfy the requirements of federal double jeopardy law."); see also Sparrow, supra at 727 (Nix, J. dissenting) ("the majority has chosen not to analyze the problem arising in this case in accordance with double jeopardy principles, but instead relies on a cursory application of this jurisdiction's merger doctrine to determine that robbery and murder are separate crimes, which do not merge, so that separate sentences are proper.").
The Court in Tarver, for the first time, held that the underlying felony in a felony murder case merged with the murder charge and sentencing on both convictions constituted a violation of the federal double jeopardy clause. See also Commonwealth v. Harper, 512 Pa. 155, 516 A.2d 319, 326-327 (Papadakos, J. concurring) ("Tarver effected a major change in the law. Since 1794, when Pennsylvania first adopted the felony-murder rule, trial judges felt free to sentence particularly heinous criminals to concurrent or consecutive sentences for the felony as well as to impose the mandatory life sentence."); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, 448 n. 11 (1973) (Pomeroy, J. dissenting) reversed by Pennsylvania v. Campana, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973).
There is nothing in the text of our constitution, the case law interpreting the Pennsylvania double jeopardy clause, or more modern Pennsylvania or federal jurisprudence that reveals that the Pennsylvania Constitution affords greater double jeopardy protections in the merger of sentencing arena than does the federal constitution. Since the double jeopardy clause in the Pennsylvania Constitution originally applied only to multiple prosecutions in capital cases and not sentencing merger, the framers of the Pennsylvania constitution never intended to restrict the legislature, via our double jeopardy clause, from defining merger of sentence issues.
In conclusion, having reviewed the federal and state clauses, as well as pertinent Pennsylvania and federal authority, we find no evidence to suggest that Article 1, § 10 prohibits the legislature from defining merger in a purely elemental fashion. Since the merger statute does not violate double jeopardy and robbery of a motor vehicle and robbery-threat of serious bodily injury are not greater and lesser-included offenses, Appellant's claim fails.
Judgment of sentence affirmed.
Judge GANTMAN Concurs in the Result.
Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 895 (1991).