J-S34037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

BRETT ALLEN WOODSIDE

                            Appellant               No. 1322 MDA 2015


               Appeal from the Judgment of Sentence July 10, 2015
                In the Court of Common Pleas of Columbia County
               Criminal Division at No(s): CP-19-CR-0000683-2013


BEFORE: PANELLA, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                            FILED JUNE 21, 2016

        Appellant Brett Allen Woodside appeals from the judgment of sentence

entered in the Columbia County Court of Common Pleas on July 10, 2015

following his jury trial conviction for voluntary manslaughter, aggravated

assault (serious bodily injury), aggravated assault (with a deadly weapon),

and tampering with evidence.1 We affirm.

        On March 27, 2015, following a jury trial, Appellant was convicted of

the aforementioned crimes in relation to the death of the victim, a friend of

Appellant’s.    The jury found Appellant not guilty of first-degree murder or

third-degree murder.



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1
    18 Pa.C.S. §§ 2503, 2702(a)(1), 2702(a)(4), and 4910(1), respectively.
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      On May 27, 2015, the trial court sentenced Appellant.         It found the

aggravated assault (serious bodily injury) count merged for sentencing

purposes with the aggravated assault (with a deadly weapon) count.              It

sentenced Appellant to 60 to 120 months’ incarceration for the voluntary

manslaughter conviction and a consecutive 60 to 120 months’ incarceration

for the aggravated assault (serious bodily injury) conviction. The court also

imposed a sentence of 12 months’ probation on the tampering with evidence

conviction, to run concurrent with the voluntary manslaughter conviction.

      On June 5, 2015, Appellant filed a post-sentence motion. On July 10,

2015, the trial court vacated the sentence imposed on May 27, 2015,

vacated the order effecting a merger of the aggravated assault convictions,

and ordered that the aggravated assault (serious bodily injury) conviction

would merge for purposes of sentencing with the voluntary manslaughter

conviction,   and   that   Appellant   would   be   re-sentenced   for   voluntary

manslaughter, aggravated assault (with a deadly weapon), and tampering

with evidence.

      On July 10, 2015, the trial court re-sentenced Appellant to 72 to 144

months’ incarceration for the voluntary manslaughter conviction, 16 to 32

months’ incarceration for the aggravated assault (with a deadly weapon)

conviction, to be served consecutive to the voluntary manslaughter

sentence, and 12 months’ probation for the tampering with evidence

conviction, to be served concurrent with the voluntary manslaughter

sentence.

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      On August 3, 2015, Appellant filed a timely notice of appeal. Appellant

filed a concise statement of errors complained of on appeal pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b) and the trial court issued

a Rule 1925(a) opinion incorporating its opinion filed July 10, 2015 as its

basis for the judgment of sentence.

      Appellant raises the following issue on appeal:

         Whether the trial court’s imposition of separate sentences
         for aggravated assault with a deadly weapon and
         []voluntary manslaughter pursuant to 42 Pa.C.S. 9765
         violates the double jeopardy clause of Article 1 Section 10
         of the Pennsylvania Constitution under the facts and
         circumstances of this case?

Appellant’s Brief at 5.

      A claim that crimes should have merged for sentencing purposes

raises a challenge to the legality of the sentence, for which our standard of

review is de novo and our scope of review is plenary.    Commonwealth v.

Nero, 58 A.3d 802, 806 (Pa.Super.2012) (quoting Commonwealth v.

Quintua, 56 A.3d 399, 400 (Pa.Super.2012)).

      The Pennsylvania statute governing the merger of sentences provides:

         No 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. § 9765. The statute “prohibits merger unless two distinct facts

are present: 1) the crimes arise from a single criminal act; and 2) all of the

statutory elements of one of the offenses are included in the statutory

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elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 833

(Pa.2009).

     Appellant maintains the trial court should have merged the crimes of

aggravated assault (with a deadly weapon) and voluntary manslaughter for

sentencing purposes.

     Aggravated assault with a deadly weapon is defined as:

        A person is guilty of aggravated assault if he:

        (4) attempts to cause or intentionally or knowingly causes
        bodily injury to another with a deadly weapon[.]

18 Pa.C.S. § 2702(a)(4).      Deadly weapon is defined as “[a]ny firearm,

whether loaded or unloaded, or any device designed as a weapon and

capable of producing death or serious bodily injury, or any other device or

instrumentality which, in the manner in which it is used or intended to be

used, is calculated or likely to produce death or serious bodily injury.” 18

Pa.C.S. § 2301.

     Voluntary manslaughter is defined as:

        (a) General rule.--A person who kills an individual without
        lawful justification commits voluntary manslaughter if at
        the time of the killing he is acting under a sudden and
        intense passion resulting from serious provocation by:

        (1) the individual killed; or

        (2) another whom the actor endeavors to kill, but he
        negligently or accidentally causes the death of the
        individual killed.

        (b) Unreasonable belief killing justifiable.--A person who
        intentionally or knowingly kills an individual commits
        voluntary manslaughter if at the time of the killing he
        believes the circumstances to be such that, if they existed,

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          would justify the killing under Chapter 5 of this title
          (relating to general principles of justification), but his belief
          is unreasonable.

18 Pa.C.S. § 2503.

       The crime of aggravated assault with a deadly weapon requires the

use of a deadly weapon, which is not an element of the offense of voluntary

manslaughter.      Further, voluntary manslaughter requires that a defendant

kill someone, which is not an element of aggravated assault with a deadly

weapon. See Commonwealth v. Weston, 749 A.2d 458, 462 (Pa.2000)

(“Voluntary     manslaughter,       imperfect    self-defense,   requires   that   the

Commonwealth establish that the defendant ‘intentionally and knowingly’

killed another.”).    Therefore, under the merger statute, the convictions do

not merge.

       Appellant argues the application of 42 Pa.C.S. § 9765 to find that

aggravated assault (with a deadly weapon) does not merge with voluntary

manslaughter violates the Pennsylvania Constitution’s Double Jeopardy

Clause.2 However, this Court has found 42 Pa.C.S. § 9765 does not violate

the Pennsylvania Constitution.           Commonwealth v. Wade, 33 A.3d 10

(Pa.Super.2011). In Wade, this Court provided an extensive discussion of

the history of the law regarding the merger of sentences and of state and

federal double jeopardy precedent and concluded:
____________________________________________


2
  Appellant concedes that Baldwin found that 42 Pa.C.S. § 9765 does not
violate the United States Constitution’s Double Jeopardy clause.




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        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.

Id. at 121.

     Because the crimes of aggravated assault (with a deadly weapon) and

manslaughter each have an element that is not an element of the other

crime, merger is not proper. See Baldwin, 985 A.2d at 833; 42 Pa.C.S. §

9765. The trial court did not err in finding the crime of aggravated assault

(with a deadly weapon) did not merge with the crime of voluntary

manslaughter for sentencing purposes.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/21/2016

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