Commonwealth v. Williams

WIEAND, Judge,

concurring and dissenting statement:

I agree with the majority that appellant’s conviction for aggravated assault did not merge for sentencing purposes in his conviction for attempted robbery. I am unable to agree, however, that his conviction for unlawful restraint merged for sentencing purposes in his convictions for aggravated assault and attempted robbery.

First, it is significant for purposes of determining the merger issue that the crime of unlawful restraint, as defined at 18 Pa.C.S. § 2902(1),1 contains the element of *326restraint. The element of restraint is not required for a conviction of aggravated assault or robbery. See: Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986) (whether statutes defining offenses contain different elements is to be considered in determining whether the offenses merge).

Secondly, the crime of unlawful restraint protects a separate and distinct interest of the Commonwealth. See: Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985) (en banc). The primary purpose of the legislature in making restraint unlawful was to create a crime between kidnapping and false imprisonment and to protect the right of citizens to move freely without restraint that would expose them to the risk of serious injury. Robbery and aggravated assault do not protect against the same harm. Robbery is designated as a crime against property committed under circumstances exposing the victim to the danger of bodily injury; and aggravated assault is intended to protect citizens against assaultive behavior likely to inflict serious bodily injury upon them.

Under these circumstances, the offense of unlawful restraint should not be held to merge for sentencing purposes in the crimes of aggravated assault and attempted robbery merely because appellant committed what in effect was a single act. See: Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986).

Because I also find no abuse of the sentencing court’s discretion, I would affirm the judgment of sentence.2

. The crime of unlawful restraint is defined at 18 Pa.C.S. § 2902(1) as follows:

A person commits a misdemeanor of the first degree if he knowingly:

(1) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury; or

. I find no merit in appellant’s contention that trial counsel was ineffective for failing to request all the judges of the County to recuse themselves for sentencing purposes because the victim was the mother of a county employee working in the Office of the Clerk of Courts.