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,
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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,
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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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