J-S14026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JACOB A. MORRONI

                            Appellant                 No. 1293 MDA 2015


              Appeal from the Judgment of Sentence April 23, 2015
                 In the Court of Common Pleas of Centre County
               Criminal Division at No(s): CP-14-CR-0001659-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                                FILED MAY 02, 2016

        Appellant, Jacob A. Morroni, appeals from the judgment of sentence

entered on April 23, 2015, in the Court of Common Pleas of Centre County.

We reverse the judgment of sentence in part, as we find that the sentence

for simple assault should have merged with one of the robbery sentences,

but we affirm the judgment of sentence in all other respects.

        As we write exclusively for the parties, who are familiar with the

factual context and legal history of this case, we set forth only so much of

the facts and procedural history as is necessary to our analysis.

        Morroni approached the victim, shook her, and grabbed her wallet.

See N.T., Trial, 3/9/15, at 76. He had possession of the wallet for “maybe
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
    Former Justice Specially assigned to the Superior Court.
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thirty seconds” before the victim was able to grab it back. Id., at 77.

Morroni then persisted in the assault. Once the victim recovered her wallet,

he reached into her pocket and took the victim’s phone. See id., at 76. As

he grabbed the phone, he took her by the hair and pulled her up the street.

See id., at 77. Eventually, he pushed her to the ground and hit the victim

on the head “maybe ten times” with a closed fist. Id., at 78.

      A jury convicted Morroni of, among other things, two counts of

robbery and simple assault. The trial court imposed consecutive sentences

on the robbery convictions and a concurrent sentence on the simple assault

conviction, resulting in an aggregate period of imprisonment of three to six

years. The trial court denied Morroni’s post-sentence motion. This timely

appeal followed. On appeal, Morroni raises two issues challenging the

legality of his sentence.

      Morroni first argues that the trial court erred in imposing separate

sentences on his robbery convictions. He maintains that his robbery

convictions, under 18 Pa.C.S.A. §§ 3701(a)(1)(iv) and (v), are “subsections

of the same crime and that he could not be sentenced separately based on

the same criminal act.” Appellant’s Brief, at 11. Morroni contends the

separate sentences violate double jeopardy.

      The propriety of the sentences for two different subsections of the

same statute based on the allegedly same conduct is a legality-of-sentence

challenge. See, e.g., Commonwealth v. Provenzano, 50 A.3d 148, 157


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(Pa. Super. 2012). Morroni contends that his argument does not pertain to

merger, but it does. “A claim that the trial court imposed an illegal sentence

by failing to merge sentences is a question of law.” Commonwealth v.

Orie, 88 A.3d 983, 1020 (Pa. Super. 2014). Accordingly, our standard of

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

v. Brougher, 978 A.2d 373, 377 (Pa. Super. 2009).

      The Sentencing Code provides as follows.

      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. “Accordingly, merger is appropriate only when two

distinct criteria are satisfied: (1) the crimes arise from a single criminal act;

and (2) all of the statutory elements of one of the offenses are included

within the statutory elements of the other.” Commonwealth v. Raven, 97

A.3d 1244, 1249 (Pa. Super. 2014).

      The statutory elements of Morroni’s two robbery convictions are plainly

different. Compare 18 Pa.C.S.A. § 3701(a)(1)(iv), with 18 Pa.C.S.A. §

3701(a)(1)(v). “If both crimes require proof of at least one element that the

other does not, then the sentences do not merge.” Commonwealth v.




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Nero, 58 A.3d 802, 807 (Pa. Super. 2012) (citations omitted). That is the

case here. The crimes do not merge.1

       Morroni relies exclusively on Commonwealth v. Rhoads, 636 A.2d

1166 (Pa. Super. 1994), to argue that his sentence on both robbery

subsections is illegal. In Rhoads, this Court stated that convictions of two

separate subsections of the simple assault statute constitute one offense for

sentencing when the factual predicate for both convictions was one

underlying act because the subsections of the simple assault statute were

drafted with the disjunctive “or,” and are, therefore, alternative bases for

conviction. See id., at 1167-1168.

       Rhoads preceded the enactment of § 9765. Our Supreme Court has

since affirmed the adoption of an elements-based approach to merger

analysis under § 9765 and thus implicitly rejected the argument that case

law   decided before       the   enactment       of §   9765   should control.   See

Commonwealth v. Baldwin, 985 A.2d 830, 835-837 (Pa. 2009). Moreover,

this Court has concluded that there is no bar to the legislature defining

merger in a purely elemental fashion and that § 9765 does not violate

double jeopardy. See Commonwealth v. Wade, 33 A.3d 108, 121 (Pa.



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1
 Our resolution of this issue differs from that of the trial court. See Trial
Court Opinion, 7/17/15, at 2-3. But we may affirm on any basis. See
Commonwealth v. Pacell, 497 A.2d 1375, 1377 n.1 (Pa. Super. 1985).



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Super. 2011). Accordingly, Morroni’s double jeopardy argument based on

the pre-§ 9765 Rhoads decision is meritless.

      Morroni next argues that the trial court erred by failing to merge for

sentencing purposes the offenses of robbery and simple assault. We agree

with this contention.

      As noted, merger under § 9765 requires that the crimes arise from a

single criminal act and all of the statutory elements of one of the offenses

are included within the statutory elements of the other. See Raven, 97 A.3d

at 1249.

      The statutory elements of simple assault are plainly included within the

statutory elements of robbery. Compare 18 Pa.C.S.A. § 2701(a)(1), with

18 Pa.C.S.A. § 3701(a)(1)(iv). Indeed, we have observed “that a conviction

for simple assault may merge with a robbery conviction for sentencing

purposes, if the prerequisites for such merger are clearly established.”

Commonwealth v. Jenkins, 96 A.3d 1055, 1059 (Pa. Super. 2014)

(emphasis in original). This is because “simple assault does not require proof

of any statutory element that robbery does not also require.” Id., at 1062

(footnote omitted).

      Thus, we must determine whether the simple assault and robbery

convictions arose out of the same criminal act. To answer this inquiry, “[w]e

must determine whether [the defendant’s] actions ... constituted a single

criminal act, with reference to elements of the crime as charged by the


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Commonwealth.” Id., at 1060 (internal quotation marks and citation

omitted; brackets added). And to do that, we examine the criminal

information. See id., at 1061.

      Here, the information simply lists the offenses and the statutory

elements. See Criminal Information, 10/15/14. It does not charge distinct

criminal acts, as the trial court acknowledges. See Trial Court Opinion,

7/17/15, at 4 (“Here, the information filed against Defendant did not list the

specific conduct that constituted the simple assault versus the conduct that

constituted robbery.”). The trial court further acknowledges that “at trial the

Commonwealth did not distinguish between which conduct was charged for

each offense.” Id.

      Despite these failings, the trial court was able to examine the evidence

and determine “that Defendant’s conduct did not constitute a single criminal

act.” Id. To make this finding, the trial court notes that this case is

“[s]imilar” to Jenkins in that the “acts can be separated into distinct

crimes.” Id. In Jenkins, however, the criminal information enumerated that

the elements of simple assault and robbery were fulfilled by the description

of the facts underlying the crimes, thus permitting their separation into the

two discrete crimes. That is completely absent here. This case is nothing like

Jenkins.

      Given the lack of factual detail in the criminal information in this case,

and even the Commonwealth’s failure to distinguish the conduct charged for


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each offense at trial, we cannot agree with the trial court that the crimes

should not have merged for sentencing purposes. Accordingly, we reverse

the judgment of sentence for simple assault at count four as it merges with

robbery at count one.

      We need not remand for re-sentencing as we have not upset the

sentencing scheme. The trial court imposed the sentence for simple assault

to run concurrent to count two. See Sentencing Order, Count 4 Simple

Assault, 4/27/15; N.T., Sentencing, 4/23/15, at 17. The judgment of

sentence as corrected in this memorandum is affirmed in all other respects.

      Convictions affirmed. Judgment of sentence affirmed in part and

reversed in part. Jurisdiction relinquished.

      President Judge Emeritus Ford Elliott joins the memorandum.

      President Judge Emeritus Stevens files a concurring and dissenting

statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/2/2016




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