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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

CONCURRING AND DISSENTING STATEMENT BY STEVENS, P.J.E.:

FILED MAY 02, 2016

      I concur with the learned Majority in all respects, except that I

disagree that Appellant’s convictions for simple assault and robbery merged

for sentencing purposes in this case.

      Our Supreme Court has held that “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. Baldwin,

604 Pa. 34, 985 A.2d 830, 833 (2009).

      In the instant case, the record belies Appellant’s contention that his

convictions for simple assault and robbery arose from a single criminal act.

Rather, a review of the affidavit of probable cause, criminal charges, and


*Former Justice specially assigned to the Superior Court.
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criminal information, as well as the notes of testimony, compels the

conclusion that Appellant committed a separate assault to the victim beyond

that which was necessary to commit the robbery. See Commonwealth v.

Anderson, 538 Pa. 574, 650 A.2d 20, 24 n.3 (1994) (“[A]ny merger

analysis must proceed on the basis of its facts.”).

      For instance, the record establishes that Appellant approached and

shook the victim then grabbed her wallet. N.T., 3/9/15, at 76. The victim

grabbed the wallet back from Appellant. Appellant then forcefully reached

into the victim’s hoodie pocket and removed her cell phone. Id. at 77, 83.

As the victim cried, Appellant began dragging her up the street by her hair,

resulting in a cut to her knee.     Id. at 77-80.     Subsequently, Appellant

pushed the victim to the ground and hit her on the head “maybe ten times”

with a closed fist, resulting in a “goose egg” to the back of the victim’s head

and a bruise above her right eye.     Id. at 78-80.    Appellant then left the

scene.

      Based on the aforementioned, assuming, arguendo, as the Majority

suggests, simple assault is a lesser-included offense of robbery, in the

present case the two convictions are not predicated upon the same criminal

conduct or act; that is, while the simple assault and robbery occurred during

the same criminal episode, Appellant engaged in distinct acts that constitute

separate crimes.




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      This Court’s opinion in Commonwealth v. Pettersen, 49 A.3d 903

(Pa.Super. 2012) is instructive. Therein, we stated:

      When considering whether there is a single criminal act or
      multiple criminal acts, the question is not “whether there was a
      ‘break in the chain’ of criminal activity.” The issue is whether
      “the actor commits multiple criminal acts beyond that which is
      necessary to establish the bare elements of the additional crime,
      then the actor will be guilty of multiple crimes which do not
      merge for sentencing purposes.”

Id. at 912 (quotations and citations omitted).

      Here, Appellant engaged in at least two separate criminal acts; one

independently fulfilled the elements of simple assault and one fulfilled the

elements of robbery.    As in Pettersen, “[a]lthough the time between the

separate acts was relatively short,” the facts are such that Appellant

committed multiple criminal acts beyond that which was necessary to

establish the bare elements of one crime. Id. at 912.

      As the Majority indicates, the criminal information in this case was

sparse and merely enumerated the crimes at issue. However, in finding this

to be a decisive factor, the Majority has construed too narrowly this Court’s

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

In Jenkins, a panel of this Court examined the criminal information, as well

as the notes of testimony, in determining whether the appellant’s actions

constituted a “single criminal act” for purposes of merger.

      Subsequently, in Commonwealth v. Kimmel, 125 A.3d 1272, 1277

(en banc) (Pa.Super. 2015), this Court, in applying the dictates of Jenkins,


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examined the “affidavit of probable cause, the criminal complaint, and the

criminal information” in concluding the appellant’s convictions arose from

multiple, separate criminal acts such that merger for sentencing purposes

was not required.

      In   the   case   sub   judice,   while   the   information   filed   by   the

Commonwealth merely enumerates the offenses, without supporting facts,

the affidavit of probable cause and criminal complaint list the facts

supporting the crimes, and the testimony comports with the victim’s

recitation of the crimes.

      Thus, Appellant should not receive a “volume discount” for his crimes,

and I would find that the jury could have reasonably concluded that multiple

separate criminal acts took place.      Accordingly, to the extent the learned

Majority concludes Appellant’s convictions for simple assault and robbery

merged for sentencing purposes, I respectfully dissent.




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