Commonwealth v. Belsar

*348 OPINION OF THE COURT

FLAHERTY, Justice.

On the evening of October 8, 1992, Clarence Belsar purchased a .22 caliber semi-automatic rifle. At about 12:30 a.m. that evening, Belsar called the victim, James Bohatch, and asked him to meet Belsar at a parking lot. He claimed that he had a fight with his wife and needed a ride to a girlfriend's house. When Bohatch arrived at the parking lot about 1:30 a.m. on October 9, Belsar told Bohatch he would have to retrieve his clothes from behind a fence. Belsar went behind the fence and instead retrieved the rifle he had earlier purchased. He then shot Bohatch at least five times, hitting him in the chest, pectoral area, stomach, upper arm and finger. The victim was seriously injured.

Bohatch testified that after he was shot, he fell to the ground and pretended to be dead. He then heard Belsar, who was joined by a confederate, say: “Ronnie, we got to find his car keys. If we don’t find his car keys we are dead men” and “Ronnie, get his wallet.” As the two assailants were looking for the car keys, Bohatch testified:

A. They—Belsar and the person he was with went around back of the fence looking for those car keys. When I knew they were back there I started to crawl through the parking lot. I crawled about ten feet. There was a couple of cars that came up Dixon. I don’t know if I was blocked by my car or what. I didn’t want to yell and so I tried to wave them down—nobody stopped. I crawled towards Dixon and towards the front of the Dairy Mart when I heard Belsar say, “he is not dead yet,” and I struggled to try to get up on my feet.
Q. What happened at that point?
A. I struggled to get up. They began kicking me. Q. Who began kicking at you?
A. Both Belsar and Ron.
Q. Kicking you where?
*349A. Just kicking at me. I straggled to grab ahold of Belsar. I got ahold of the flannel shirt that he had on. Belsar told Ronnie, “help me with him—help me with him” and the juvenile just took off.
Q. Did you see him take off?
A. Yeh; I seen him leave. I had Belsar by the collar of his shirt. I don’t know what I said or what I muttered. I ripped the shirt off of him and he left.
Q. What did you do then?
A. I again went back down to the ground. I held my heart. I was bleeding profusely. I knew that I was hit there the worst. I had volunteered in an ambulance service for eight years. I was familiar with my injuries and how serious they were. I tried to control my breathing which was very difficult because I couldn’t get any air. I tried to keep myself calm and I began yelling for help.

N.T. 19-21.

A jury convicted Belsar of aggravated assault as a felony of the first degree (inflicting serious bodily injury) and as a felony of the second degree (inflicting bodily injury with a deadly weapon); attempted murder; robbery; and criminal conspiracy. He was sentenced to ten to twenty years for aggravated assault as a first degree felony; a consecutive term of five to ten years for attempted murder; and five to ten years for robbery, consecutive to the aggravated assault but concurrent with the sentence for attempted murder. No sentence was imposed for aggravated assault as a second degree felony or for criminal conspiracy.

Belsar appealed to Superior Court, which affirmed the judgment of sentence. We granted allocatur to address Belsar’s claim that he was sentenced in violation of our opinion in Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994).

*350In Anderson we attempted to clarify our earlier cases Commonwealth v. Williams, 521 Pa. 556, 559 A.2d 25 (1989) and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989) as follows:

[W]e reaffirm our holding in Williams and abrogate the holding in Weakland. We now hold that in all criminal cases, the same facts may support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser included offenses---In other words, it does not matter for purposes of merger whether one regards Weakland’s striking the customer and kidnapping him as one encounter or as two encounters, for the same facts, i.e., striking the victim with a gun, may be used to satisfy the force requirements of at least two crimes, kidnapping and aggravated assault, and the sentences for each crime will not merge because these crimes are not greater and lesser included offenses.

Anderson, 538 Pa. at 579, 650 A.2d at 22. Applying this analysis to the facts of Anderson, we concluded that aggravated assault merges into attempted murder for purposes of sentencing. Thus, the rule which emerged from Anderson was that a single criminal act would supply the necessary elements for as many crimes as were applicable to that act, with the proviso that for sentencing purposes, the greater and lesser included offenses would merge, and that aggravated assault merges into attempted murder for sentencing purposes.

The present case is not analogous to Anderson, although Belsar seeks to make it so. In Anderson a single criminal act—shooting—produced the injury to the victim and the crimes applicable to that single act merged because they were greater and lesser included offenses; in the present case, although the shooting was an aggravated assault, an additional aggravated assault was committed. The additional assault was the kicking of a seriously injured man.

We addressed this type of situation in Weakland. Although we abrogated Weakland’s holding with respect to the sentencing effect of committing a single criminal act, we did not *351abrogate Weakland’s treatment of multiple criminal acts, which remains the law of Pennsylvania. In Weakland we stated:

If ... 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.

521 Pa. at 364, 555 A.2d at 1233.

Thus, on the facts of this case, merger does not apply, for the kicking attack was a separate incident that exceeded that which was necessary to accomplish the attempted murder. If the sentence for the kicking-aggravated assault were to merge with the sentence for attempted murder, the merger would implicate the “volume discount” on crime which we discussed in Anderson:

Our concern, as we pointed out in Weakland, is to avoid giving criminals a “volume discount” on crime. If multiple acts of criminal violence were regarded as part of one larger criminal transaction or encounter which is punishable only as one crime, then there would be no legally recognized difference between a criminal who robs someone at gunpoint and a criminal who robs the person and during the same transaction or encounter pistol whips him in order to effect the robbery. But in Pennsylvania, there is a legally recognized difference between these two crimes. The criminal in the latter case may be convicted of more than one crime and sentences for each conviction may be imposed where the crimes are not greater and lesser included offenses.

Anderson, 538 Pa. at 579-80, 650 A.2d at 22.

In sum, the crime of aggravated assault here occurred by the act of kicking a man who had just been wounded by rifle fire. This act was different from and in addition to the criminal’s earlier act of shooting, which was the factual basis for the convictions of attempted murder and aggravated assault. The aggravated assault based on shooting merged with attempted murder; but the aggravated assault which did not merge was based on the act of kicking him later. When a *352criminal act has been committed, broken off, and then resumed, at least two crimes have occurred and sentences may be imposed for each. To hold that multiple assaults constitute only one crime is to invite criminals like Belsar to brutalize their victims with impunity.

The second claim is that Belsar’s convictions for attempted murder, aggravated assault, and robbery should all merge. Essentially what is being argued is that this case involves only a robbery, so that all crimes merge into the robbery. As Belsar argues in his brief,

The Commonwealth has contended that the assault on the victim was undertaken in a single effort to rob the victim. Consequently, it all becomes a singular act for sentencing purposes and all charges should merge into the robbery for sentencing purposes.

Brief at 22. In essence, this argument harks back to the old analysis in which the court was required to figure out how many offenses against the Commonwealth or how many “evils” had been committed in a criminal episode. If the criminal episode consisted of a series of criminal acts which were regarded as one injury to the Commonwealth, then the criminal could receive only one sentence. We slew this particular dragon in both Williams and Weakland, but it is apparent that the dragon has regenerated itself one more time.

This claim can be separated into three questions. The first is whether the aggravated assault merges into robbery. The second is whether the attempted murder merges into robbery. The last is whether all of the crimes associated with the criminal event (the totality of facts in the case) merge into robbery.

As to whether aggravated assault merges with robbery, the elements of both crimes, as applied to this case are that robbery involves an infliction of serious bodily injury while committing a theft; and aggravated assault (here, kick*353ing, a felony of the first degree)1 involves intentionally inflicting serious bodily injury under circumstances manifesting extreme indifference to the value of human life.2 Thus, the crimes do not merge, for robbery requires proof of theft, which aggravated assault does not, and aggravated assault as a felony of the first degree requires proof of circumstances manifesting extreme indifference to the value of human life, which robbery does not.

The second question is whether attempted murder merges with robbery. The elements of robbery as applied to this case, again, are, infliction of serious bodily injury while committing a theft and the elements of attempted murder are taking a substantial step toward an intentional killing. See Anderson 538 Pa. at 582, 650 A.2d at 24. Once again, the *354crimes do not merge, for robbery requires proof of a theft, which attempted murder does not; and attempted murder requires taking a substantial step toward an intentional killing, which robbery does not.

The last question is whether all crimes attributable to this criminal episode merge into robbery because, as Belsar would have it, the only criminal event in this case was a robbery. As we stated in Anderson, reaffirming our holding in Williams, “in all criminal cases, the same facts may support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser included offenses.” In other words, it does not matter whether one characterizes what the criminal did as one act (forcefully taking another’s property) or a thousand acts (entering into an agreement with another to commit a crime, shooting someone five times with a rifle, searching their body for keys, stealing their wallet, kicking them when it appears that they remain alive): whatever he did—the facts in the case—will support as many convictions as there are applicable crimes, save only that if some of those crimes merge with others, he may not be sentenced on the crimes that merge. As we have seen above, robbery merges with neither attempted murder nor aggravated assault.

To hold that the crimes merge (i.e., that the assault was merely a part of the robbery and not a crime in itself) would be to award criminals the “volume discount” on crime that we have mentioned before. That we refuse to do.

Order of Superior Court affirming the judgment of sentence is affirmed.

MONTEMURO, J., who was sitting by designation, did not participate in the decision of this case.

CAPPY, J., files a dissenting opinion which is joined by ZAPPALA, J.

. Aggravated assault as a felony of the second degree (shooting) is not the subject of this discussion, for Belsar was not sentenced on his conviction of aggravated assault as a second degree felony.

. The elements of the crimes at issue in this case are as follows:

§ 2702. Aggravated assault
(a) . Offense defined.—A person is guilty of aggravated assault it he: (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon....

(b) Grading.—Aggravated assault under subsection (a)(1) and (2) is a felony of the first degree. Aggravated assault under subsection (a)(3), (4) and (5) is a felony of the second degree.

§ 3701. Robbery (a) Offense defined.—
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second degree;
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury; or
(v) physically takes or removes property from the person of another by force however slight.

(2) An act shall be deemed "in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.