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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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