dissenting.
Because the assertion of the majority that Appellant’s kicking of the victim provides the basis for the conviction of *355Aggravated Assault, 18 Pa.C.S.A. § 2702(a)(1), is without support in the record, I dissent. In addition, I dissent to the majority’s analysis of the merger doctrine.
At pages 350-51 of the Opinion, the majority concludes that the aggravated assault charge of inflicting serious bodily injury, 18 Pa.C.S.A. § 2702(a)(1), was supported by Appellant’s kicking of the victim. Additionally, the majority concludes that the assault charge of inflicting bodily injury with a deadly weapon, 18 Pa.C.S.A. § 2702(a)(4), along with the attempted murder charge were supported by Appellant’s shooting of the victim at least five times.1 Because there is absolutely no indication in the record to support this characterization of the facts or to support the contention that this theory was ever presented to the jury, I cannot agree with the majority.
Indeed, what little evidence of record which does exist relative to this point supports the conclusion that both the (a)(1) aggravated assault and the (a)(4) aggravated assault were based upon Appellant’s shooting of the victim five times. For example, in the criminal complaint filed by Trooper Gary D. Brownfield with District Justice Rick Vernon, dated October 9, 1991, the Trooper lists inter alia, both (a)(1) and (a)(4) aggravated assaults as the crimes of which Appellant is accused and recites as the factual basis thereof that Appellant “did intentionally, knowingly or recklessly cause bodily injury to [the victim] with a .22 cal. rifle, a deadly weapon, in that the [Appellant] did shoot [the victim] five times in the upper body area with said rifle____” In addition, the District Attorney’s Criminal information charging Appellant with conspiracy to commit Criminal Homicide, Aggravated Assault and Robbery states as the overt acts which support the conspiracy charges as follows: “planning and executing the crimes of Criminal *356Homicide, Aggravated Assault and Robbery. The [Appellant] obtained a .22 caliber rifle, made arrangements to meet the victim James Joseph Bohatch and pointed the weapon at the victim discharging the weapon____” Furthermore, at the guilty plea hearing held before the Honorable Gerald Solomon on April 6, 1992, the prosecutor summarized the factual basis for the crimes to which Appellant was expected to plead guilty. During that summary, the prosecutor stated that the Appellant “did commit the offenses charged. Again, criminal attempt to commit homicide in the shooting of James Bohatch. Aggravated assault with regard to the same shooting.” N.T. April 6, 1992, at p. 8.2 And finally, in its “NOTICE OF INTENTION TO PROCEED UNDER SECTION 9712 OF THE JUDICIAL CODE”, the District Attorney wrote that
the Commonwealth intends to seek the mandatory minimum sentence of five years of total confinement in accordance with Section 9712(a) of the Judicial Code, 42 Pa.C.S.A. Section 9712(a) as a preponderance of the evidence at trial established that the [Appellant] visibly possessed a firearm dining the commission of the offenses of aggravated assault as defined in the Pennsylvania Crimes Code, 18 Pa.C.S.A. Section 2702(a)(1)____(emphasis added)3
None of the foregoing ever mentions Appellant’s kicking of the victim as a basis supporting any aggravated assault charges. In fact, nowhere in the record is Appellant’s kicking of the victim mentioned as a basis supporting any charges.
Neither the opening or closing statements of the prosecutor nor those of the defense were recorded and thus we do not have an exposition of the Commonwealth’s theory of this case. However, in addition to the foregoing, the Commonwealth in its brief actually concedes that “under the holding in Anderson, the act of shooting provides the elements for both the charges of attempted murder and aggravated assault and *357the Commonwealth must in all candor concede that under this scenario the crimes merge for sentencing purposes.” Commonwealth’s Brief at 2.4
Moreover, even if I were to accept the majority’s foundationless characterization that the aggravated assault under (a)(1) was based upon the kicking and not the shooting, I would still be compelled to dissent. Aggravated assault under (a)(1) requires that the actor attempt to cause or actually causes “serious bodily injury” to the victim. “Serious bodily injury” is defined as “[bjodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.” 18 Pa.C.S.A. § 2301. Again, there is no evidence of record whatsoever that the kicking caused such injury or could have caused such serious bodily injury. The only medical testimony offered related solely to the injuries caused by the gunshot wounds. As the Commonwealth had the burden to prove every element of the crimes charged and failed to adduce evidence as to the significance of the kicking vis-a-vis serious bodily injury, the law requires a conclusion that the Commonwealth failed to prove aggravated assault-(a)(l) based upon the kicking.
In addition to my disagreement with the majority on the foregoing points, it is necessary to set forth what I consider to be the proper analysis with regards to the merger doctrine because this area has engendered much confusion and because the majority opinion does not properly perform the merger analysis. The first question to ask in a merger analysis is, “Whether the crimes charged are lesser and greater included *358offenses?”, because the merger doctrine is concerned with only such kinds of crimes. See Commonwealth v. Williams, 521 Pa. 556, 559 A.2d 25 (1989); Commonwealth v. Ennis, 394 Pa.Super. 1, 574 A.2d 1116 (1990). If the crimes charged are not lesser and greater included offenses then there is no question of merger, no matter upon which facts the offenses are based. See, e.g., Commonwealth v. Anderson, 538 Pa. 574, 579, 650 A.2d 20, 22 (1994) (“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.”) Thus, shooting a gun one time which causes a single injury may support the force element required for convictions for aggravated assault, robbery and kidnapping and the sentences for those three crimes would not merge unless they were lesser and greater included offenses.
If however the crimes are indeed lesser and greater included crimes, such as aggravated assault and attempted homicide, Anderson, then we must ask the second question of our merger analysis: Are the crimes which are charged based upon the same facts? If we answer that question no, then the sentences for those two crimes do not merge. For example, if on Sunday, Jones shot Smith in the chest and then ran away, but returned on Monday and began to beat Jones, Smith would be guilty of attempted murder for the Sunday shooting and of aggravated assault for the beating on Monday and the sentences for those two convictions would not merge despite the fact that they are lesser and greater included crimes.
However, if we answer the question of whether the greater and lesser included offenses are indeed based upon the “same facts” in the affirmative, then the sentences would indeed merge, no matter how many acts occurred. “ ‘The same facts’ means any act or acts which the accused has performed and any intent which the accused has manifested, regardless of whether these acts and intents are part of one criminal plan, scheme, transaction or encounter, or multiple criminal plans, schemes[,] transactions or encounters.” Anderson, 538 Pa. at *359579, 650 A.2d at 22 (emphasis added). For example, in the matter sub judice, the five shots fired by Appellant into the victim might be viewed as four aggravated assaults and one attempted murder or any combination thereof; nevertheless, to the extent that aggravated assault and attempted murder are greater and lesser included offenses, the sentences would merge. Mistakenly, some may say that this gives a volume discount to criminals, but no less is required by the doctrine of merger and by any concept of double jeopardy.
Analytically, the difficult question in applying the doctrine of merger becomes, “What are ‘the same facts’?” The immediately preceding quote from Anderson perhaps overstates the case. If we were to take those words literally, then in the Smith-Jones example given earlier, we would be required to merge the sentences of the Sunday attempted murder with the Monday aggravated assault. Clearly that would not be a correct result. Reviewing the cases which deal with this question reveals a rule: the rule is that where there is a “break in the action” then the facts preceding the “break in the action” are not the “same facts” as the facts which follow the “break in the action”, for purposes of the merger doctrine. See, e.g., the majority Opinion at 634. “When a criminal act has been committed, broken off, and then resumed, at least two crimes have occurred and sentences may be imposed for each.” (emphasis added); Commonwealth v. Bell, 386 Pa.Super. 164, 174, 562 A.2d 849, 854 (1989)
The Commonwealth contends the second blow which landed on Father Rock’s mouth amounted to a separate offence of aggravated assault since it was an unprovoked attack that has nothing to do with appellant’s ability to flee with the stolen items. We believe the Commonwealth’s position which attempts to establish a separate aggravated assault in the commission of the robbery, because two blows were struck is untenable. The blows were in rapid succession and part of the act constituting the robbery, and therefore, cannot constitute separate crimes. If there was a break in *360the action and a second assault occurred, after the acts that constituted some of the elements of the robbery, the Commonwealth would be correct.5
Providing content to the concept of what qualifies as a “break in the action” for purposes of the merger doctrine will be the function of the common law’s great tradition of giving definition to concepts on a case by case basis.6
Based upon the foregoing analysis and because aggravated assault under (a)(1) and the attempted homicide are lesser and greater included offenses, Anderson, and as importantly, because it is clear on this record that the charges were based on the “same facts” (the shooting), the sentences for the crimes at issue must merge.
For all of the foregoing reasons, I respectfully dissent.
ZAPPALA, J., joins this dissenting opinion.
. § 2702. Aggravated assault
(a) Offense defined.—A person is guilty of aggravated assault if 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[.]
. After the recitation of the facts at this hearing, the Appellant disputed that he committed either robbery or conspiracy. The plea agreement collapsed and Appellant was subsequently brought to trial.
. There was no affirmative evidence of record that the Appellant was visibly possessing the rifle at the time he kicked the victim.
. The Commonwealth does go on to argue that kicking of the victim amounted to an aggravated assault, presumably of the (a)(1) variety because the Commonwealth in this regard speaks about “the intent to inflict serious bodily injury”, an element of (a)(1) but not of (a)(4) and because the trial court did not sentence upon the (a)(4) charge and thus the (a)(4) conviction is not an issue here. However, the Commonwealth does not so much argue that Appellant is guilty of Aggravated Assault-(a)(l) due to his own actions but rather asserts that Appellant is guilty of Aggravated Assault-(a)(l) as an accomplice of Ronnie Foreman, who likewise kicked the victim, and as such, Appellant's sentence for aggravated assault-(a)(l) should not merge with the attempted homicide.
. While I agree with the Bell court’s analysis with regards to the "break in the action”, I disagree with the Bell court’s conclusion that robbery and aggravated assault merge. As they are not lesser and greater included offenses, they cannot merge. The flaw in the Bell court’s analysis was to first look at whether the robbery and the aggravated assault were based upon the same facts rather than first ask if the two crimes were greater and lesser included offenses.
. As far as I am concerned because the Commonwealth did not base any charges upon Appellant’s kicking of the victim, I need not address the question of whether the time and intervening acts which transpired between the Appellant’s shooting of the victim and the Appellant's kicking of the victim constituted a "break in the action” for purposes of the merger doctrine.