Commonwealth v. Martir

BECK, Judge,

concurring:

Like the majority I conclude that Endangering the Welfare of Children, 18 Pa.C.S.A. § 4304, and Recklessly Endangering Another Person, 18 Pa.C.S.A. § 2705, do not merge. As the trial court noted the two crimes do not have a greater lesser-included offense relationship. I write to emphasize that' the majority’s analysis clearly demonstrates that one crime is not the lesser included offense of the other and therefore the sentences do not merge.

As Judge Ludgate so perceptively stated:

[T]he elements necessary to establish endangering the welfare of a child are distinct from those required for recklessly endangering another person.... Only the actions, and not the omission of action, by the accused in recklessly placing another in known risk of death or great bodily harm can establish the crime of recklessly endangering another person.
The distinctions between the elements of endangering the welfare of a child and recklessly endangering another person are further accentuated by the fact that the two crimes protect distinct societal interests, and are located in different sections of the crimes code.1 These factors are further indicia that the two crimes do not merge for the purpose of sentencing. See Commonwealth v. White, [341 Pa.Super. 261], 491 A.2d 252 (1985)(crimes of rape and incest do not merge because they have different elements that do not necessarily involve the other, are contained in different sections of the crimes code, and protect different social interests). For all of these reasons, the crimes of recklessly endangering another person and endangering the welfare of a child do not merge for the purposes of sentencing.

*331Trial Ct. Op. At 19-20.

. Recklessly endangering another person is contained within "Article B: Offenses Involving Danger to the Person”, while endangering the *331welfare of a child is contained within "Article D: Offenses Against the Family."