J-S21005-18

                               2018 PA Super 249

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 ROBERT EDWARD CRISSMAN, JR.             :
                                         :
                   Appellant             :   No. 1873 WDA 2016

           Appeal from the Judgment of Sentence June 28, 2016
  In the Court of Common Pleas of Armstrong County Criminal Division at
                     No(s): CP-03-CR-0000669-2015


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

OPINION BY OLSON, J.:                         FILED SEPTEMBER 06, 2018

      Appellant, Robert Edward Crissman, Jr., appeals from the judgment of

sentence entered on June 28, 2016, as made final by the denial of his

post-sentence motion on November 8, 2016. We affirm.

      The factual background and procedural history of the case are as

follows.   At approximately 6:30 a.m. on the morning of July 30, 2015,

Appellant, an inmate at the Armstrong County Jail, escaped into the nearby

woods. After discarding his shirt, which identified him as an inmate at the

Armstrong County Jail, Appellant continued through the woods, eventually

finding his way to the home of the victim, Tammy Long (Long), and her live-in

boyfriend, Terry Slagle (Slagle).    Appellant knew both of them and had

previously been to their home.

      Appellant told the couple that he was having car trouble and needed a

ride to Kittanning, which Long offered. Shortly thereafter, Slagle was picked
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up by his father and taken to work, leaving Long and Appellant alone in the

house.   Appellant then proceeded to tie Long to the handles of a cabinet

beneath her bathroom sink, where he bludgeoned her with a toilet tank lid,

causing it to shatter. According to the testimony of Dr. Cyril Wecht, Long died

of strangulation, which took four to six minutes to occur, rather than from

repeated head trauma.

      A neighbor saw Appellant leave Long’s home in Slagle’s truck around

8:30 a.m.     Thereafter, Appellant arrived at the home of a friend, David

Reesman, at approximately 10:00 a.m. Nearly 24 hours later, Appellant was

spotted stealing another truck, whereupon he was apprehended.

      On July 31, 2015, the Commonwealth charged Appellant with 12

different offenses, including first-degree murder, second-degree murder,

robbery - inflicting serious bodily injury upon another, robbery of a motor

vehicle, and escape. On May 12, 2016, a jury convicted Appellant of one count

of first-degree murder (18 Pa.C.S.A. § 2502(a)), one count of second-degree

murder (18 Pa.C.S.A. § 2502(b)), and one count of escape (18 Pa.C.S.A.

§ 5121(a)).    The court, on June 28, 2016, sentenced Appellant to two

concurrent life terms for his first and second-degree murder convictions and

to not less than 18 months nor more than 84 months for his escape conviction.

The court also directed that Appellant’s sentence for escape should run




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concurrent to his life terms. Appellant filed a post-sentence motion on July 8,

2016, which was denied on November 8, 2016. This timely appeal followed.1

       Appellant claims the trial court violated his constitutional protection

against double jeopardy by imposing separate, but concurrent, sentences for

his first and second-degree murder convictions. See Appellant’s Brief at 9.

This claim directly implicates the legality of Appellant’s sentence,2 so our

standard of review is de novo and the scope of our review is plenary.

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009), citing

Commonwealth v. Collins, 764 A.2d 1056 (Pa. 2001).

       “The double jeopardy protections afforded by the United States and

Pennsylvania      Constitutions      are   coextensive     and   prohibit   successive

prosecutions      and     multiple     punishments       for   the   same    offense.”

Commonwealth v. Miskovitch, 64 A.3d 672, 685 (Pa. Super. 2013).

“Impermissible multiple punishment can take the form of consecutive

sentences or, as here, concurrent sentences.” Commonwealth v. Houtz,

____________________________________________


1  Appellant filed a notice of appeal on December 7, 2016. On December 8,
2016, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). After several
substitutions of counsel, current counsel was appointed on January 30, 2017.
Thereafter, on February 9, 2017, Appellant requested leave to file his concise
statement nunc pro tunc. A concise statement was ultimately filed on March
16, 2017. The trial court issued its Rule 1925(a) opinion on April 6, 2017.

2 “The phrase illegal sentence is a term of art in Pennsylvania [] that is applied
to three narrow categories of cases[, including claims involving merger/double
jeopardy[.]” Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super.
2013).

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437 A.2d 385, 348 (Pa. 1981).                  Merger principles safeguard criminal

defendants from double jeopardy violations by guiding judicial inquiry into

whether multiple punishments have been imposed for the same offense.

Miskovitch, 64 A.3d at 685.

       In Pennsylvania, merger is governed under 42 Pa.C.S.A. § 9765, which

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.A. § 9765. The statute establishes two requirements for merger of

offenses: (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

elements of the other offense. Baldwin, 985 A.2d at 833. Baldwin holds

that our General Assembly intended to preclude merger of offenses where

each requires proof of an element the other does not. Id. at 834-835.

       We begin our merger analysis under section 9765 by setting forth the

elements of first and second-degree murder.3              The Crimes Code defines

first-degree murder as a criminal homicide committed by an intentional killing.

18 Pa.C.S.A. § 2502(a). An intentional killing is a “killing by means of poison,



____________________________________________


3 There is no dispute that the charges for first and second-degree murder
arose from a single act. See Commonwealth v. Jenkins, 96 A.3d 1055,
1060 (Pa. Super. 2014), appeal denied, 104 A.3d 3 (Pa. 2014).

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or by lying in wait, or by any other kind of willful, deliberate and premeditated

killing.”   18 Pa.C.S.A. § 2502(d).       To prove first-degree murder, the

Commonwealth must show “that a human being was unlawfully killed, the

defendant perpetrated the killing, and the defendant acted with malice and a

specific intent to kill.” Commonwealth v. Montalvo, M., 986 A.2d 84, 92

(Pa. 2009), quoting Commonwealth v. Kennedy, 959 A.2d 916, 921 (Pa.

2008).

       A criminal homicide constitutes second-degree murder, or “felony

murder,” if “it is committed while [the] defendant was engaged as a principal

or an accomplice in the perpetration of a felony.” 18 Pa.C.S.A. § 2502(b).

Enumerated felonies include: robbery, rape, deviate sexual intercourse by

force or threat of force, arson, burglary, and kidnapping.         18 Pa.C.S.A.

§ 2502(d). The mens rea element of second-degree murder is inferred from

the commission of the underlying felony. Commonwealth v. Tarver, 426

A.2d 569, 573 (Pa. 1981) (“As applied in Pennsylvania, common law

felony-murder is a means of imputing malice where it may not exist expressly.

Under this rule, the malice necessary to make a killing, even an accidental

one, murder, is constructively inferred from the malice incident to the

perpetration of the initial felony.”), quoting Commonwealth v. Yuknavich,

295 A.2d 290, 292 (Pa. 1972); see also Commonwealth v. Mikell, 729 A.2d

566, 569 (Pa. 1999) (“[T]he malice essential to the crime of second-degree

murder is imputed to the defendant from the intent to commit the underlying


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felony, regardless of whether the defendant actually intended to physically

harm the victim.”).

      To determine if Appellant’s murder convictions merge for sentencing

purposes, we compare the elements of his crimes to ascertain whether all of

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

elements of the other offense. See Baldwin, 33 A.3d at 116. We accomplish

this by asking if one offense requires proof of a fact the other does not. At

the outset, we note that second-degree murder requires the perpetration of

an enumerated felony, while first-degree murder does not include such a

requirement. Thus, second-degree murder does not merge with first-degree

murder for sentencing purposes. We therefore turn to whether first-degree

murder merges with second-degree murder. Because first-degree murder,

like second-degree murder, requires a criminal homicide committed by the

defendant, our analysis of this question comes down to whether the specific

intent to kill (required for first degree murder) involves proof of a fact that is

not essential to the element of malice, which is inferred from a second-degree

murder defendant’s participation in an enumerated felony. For the reasons

that follow, we hold that the “specific intent to kill” element of first-degree

murder involves proof of facts that are not essential for establishing

second-degree murder and, therefore, the offenses cannot merge for

sentencing purposes.




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       Our Supreme Court has noted that the “specific intent to kill” carries an

enhanced evidentiary burden which differentiates it from the malice inferred

from a second-degree murder defendant’s commission of an enumerated

felony. In Mikell, the defendant attempted to rob the victim before killing

him. He argued, therefore, that while the evidence may have been sufficient

to prove second-degree murder, it was insufficient to establish first-degree

murder since it lacked proof of a specific intent to kill. Mikell, 729 A.2d at

569.    The Court affirmed the defendant’s first-degree murder conviction,

noting that circumstantial evidence showing the use of a deadly weapon upon

a vital area of the body demonstrated a specific intent to kill. Id. In reaching

this determination, the Court differentiated between “actual malice” and the

malice inferred from the commission of a felony (i.e., the mens rea elements

of first and second-degree murder):

       The difference between first-degree and second-degree murder
       lies in the requisite malice. Where first-degree murder requires a
       specific intent to kill (actual malice), the malice essential to the
       crime of second-degree murder is imputed to the defendant from
       the intent to commit the underlying felony, regardless of whether
       the defendant actually intended to physically harm the victim.

Id.; see also Fuller v. United States, 407 F.2d 199, 1224 (D.C. Cir. 1968)

(“[First and second-degree murder] are distinct in the sense that they have

different elements. One requires that the slaying be done with ‘deliberate and

premeditated malice,’ the other requires that the killing occur in the course of

certain enumerated felonies.”).     Mikell shows that “specific intent to kill”

requires, in all cases, proof of a willful, deliberate, and premeditated killing

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that inferred or imputed malice does not. Thus, first-degree murder does not

merge with second-degree murder for sentencing purposes.

      Notwithstanding the above, Appellant argues that the imposition of two

concurrent life sentences for the killing of one individual constitutes

impermissible multiple punishment in violation of his rights against double

jeopardy. See Appellant’s Brief at 9. Citing Commonwealth v. Walker, 362

A.2d 227 (Pa. 1976) and Commonwealth v. Owens, 649 A.2d 129 (Pa.

Super. 1994), Appellant argues that “[a]n individual may only be punished

once for a single act which causes a single injury to the Commonwealth.”

Appellant’s Brief at 11, quoting Owens, 649 A.2d at 137. Although Appellant

acknowledges that first-degree murder and second-degree murder have

different elements, he asserts that this is not dispositive of whether there is

more than one injury to the Commonwealth.        See Appellant’s Brief at 13.

Instead, Appellant argues that, where an intentional killing has occurred, only

the Commonwealth’s interest in deterring deliberate killings is implicated and

the occurrence of a killing during the course of an enumerated felony becomes

irrelevant.   See Appellant’s Brief at 14.   In such circumstances, Appellant

concludes that the Commonwealth sustains only one injury and may only

impose a single punishment.

      Prior to the adoption of § 9765, our Supreme Court held that “[a]nalysis

of [duplicative] sentence questions [traditionally] revolved around the concept

of injury to the sovereign, in this case the Commonwealth.” Commonwealth


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v. Walker, 362 A.2d 227, 231 (Pa. 1976). To support the imposition of two

punishments under this approach, a defendant had to engage in conduct that

constituted two injuries to the Commonwealth. Id.

      Through passage of the merger statute at § 9765, however, the

legislature replaced the “single injury” approach and adopted clear guidance

as to when merger could, and could not, be found.            This is clearly a

determination allocated to the General Assembly under our constitutional

scheme. Our Supreme Court previously observed:

      The double jeopardy provision does not restrain the legislature in
      its role in defining crimes and fixing penalties. Its intendment is
      to prevent courts from imposing more than one punishment under
      the legislative enactment and restraining prosecutors from
      attempting to secure that punishment in more than one trial.

Commonwealth v. Frisbie, 485 A.2d 1098, 1100 (Pa. 1984) (citations

omitted) (emphasis in original).

      Since the enactment of § 9765 and a pure statutory elements approach

to sentencing merger, this Court has noted that “[m]erger law has evolved

substantially since [the issuance of decisions that predate the merger statute.

Now,] Section 9765 and the ‘elements’ approach to merger govern [merger

claims].”   Commonwealth v. Cianci, 130 A.3d 780, 783 n.2 (Pa. Super.

2015).   Under the strict, elements-based test, “[t]he only way two crimes

merge for sentencing is if all elements of [one] offense are included within the

[elements of the other] offense.” Commonwealth v. Coppedge, 984 A.2d

562, 564 (Pa. Super. 2009).        In applying this test, we have said that


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regardless of whether the facts of a particular case establish the commission

of two crimes, if an individual can commit one offense without committing the

other, “the elements in general are different, and the legislature has said

merger cannot apply. The analyses by cases arising before the effective date

of 42 Pa.C.S.A. § 9765 are [no longer instructive in such instances].”

Coppedge, 984 A.2d at 565 (merger is forbidden unless “all of the statutory

elements of one offense are included in the statutory elements of the other

offense,” even if there is only a single criminal act) (emphasis in original).

Appellant’s “single injury” theory is inconsistent with the current approach to

merger compelled by § 9765.

      For each of the foregoing reasons, Appellant is not entitled to relief.

Appellant’s first and second-degree murder convictions do not merge under

42 Pa.C.S.A. § 9765. First-degree murder requires proof of a specific intent

to kill in all cases while second-degree murder does not, and second-degree

murder requires the commission of an enumerated underlying felony while

first-degree murder does not. Because all of the statutory elements of one of

the offenses are not included in the statutory elements of the other offense,

the trial court did not err in imposing separate sentences for Appellant’s

murder convictions.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/2018




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