Commonwealth v. Greene

DISSENTING OPINION BY

FORD ELLIOTT, P.J.:

Because I would find that appellant’s Massachusetts convictions qualify as substantially similar crimes of violence to relevant Pennsylvania law, I would affirm appellant’s life sentence. Therefore, I respectfully dissent.

The issue before us is one of statutory construction that implicates the legality of the sentence imposed. As a result, our standard of review is de novo and the scope of our review is plenary. Commonwealth v. Samuel, 599 Pa. 166, 961 A.2d 57, 60-61 (2008); Commonwealth v. Collins, 564 Pa. 144, 764 A.2d 1056, 1057 n. 1 (2001).

Commonwealth v. Northrip, 603 Pa. 544, 548, 985 A.2d 734, 736 (2009).

An equivalent offense is defined as a foreign offense which is substantially identical in nature and definition when compared to the Pennsylvania offense. Commonwealth v. Shaw, 560 Pa. 296, 304, 744 A.2d 739, 740 (2000); Commonwealth v. Taylor, 831 A.2d 661 (Pa.Super.2003). The test to determine whether an out-of-state offense is an equivalent of a Pennsylvania offense requires the sentencing court to compare the elements of the crimes, the conduct prohibited by the offenses, and the underlying public policy behind the two criminal statutes. Shaw, supra. If the sentencing court determines that the prior offense is equivalent to a violent crime enumerated under a Pennsylvania statute, the defendant will be subject to the mandatory minimum sentence of total confinement. We note that the offenses do not identically have to mirror each other but must be substantially equivalent to invoke operation of 42 Pa. C.S. § 9714.

Commonwealth v. Ward, 856 A.2d 1273, 1277 (Pa.Super.2004). See also Northrip, supra (re-affirming the Shaw test for equivalent offenses in a Section 9714 case).

The first conviction at issue occurred in 1977. Chapter 265, Section 19 of the Massachusetts Criminal Code, “Robbery by unarmed person,” provides, in relevant part, as follows:

(b) Whoever, not being armed with a dangerous weapon, by force and violence, or by assault and putting in fear, robs, steals or takes from the person of another, or from his immediate control, money or other property which may be the subject of larceny, shall be punished by imprisonment in the state prison for life or for any term of years.

M.G.L.A. 265 § 19(b) (emphasis added).1

The Majority finds that M.G.L.A. 265 § 19(b) does not require the infliction of *369serious bodily injury or the threat thereof, as do Subsections (a)(l)(i) and (ii) of the Pennsylvania robbery statute. According to the Majority, Massachusetts’ unarmed robbery statute encompasses conduct covered under Subsections (a)(l)(iv) and (v) of the Pennsylvania statute, which are not considered crimes of violence for purposes of Section 9714. For example, the Majority contends that the Massachusetts statute would include the threat of bodily injury, which constitutes a felony of the second degree under 18 Pa.C.S.A. § 3701(a)(l)(iv). Therefore, the Majority concludes that the crimes are not equivalent.

The Massachusetts Supreme Court has recognized that the unarmed robbery statute simply restates the common law of robbery; “In other words, although it carries a separate label, robbery is but an aggravated form of larceny.” Commonwealth v. Jones, 362 Mass. 83, 86, 283 N.E.2d 840, 842-843 (1972) (citations and internal quotation marks omitted). “The common law came to regard robbery as a more serious offence than larceny because of the added element of personal violence or intimidation. The exertion of force, actual or constructive, remains the principal distinguishing characteristic of the offence.” Id. at 86, 283 N.E.2d at 843 (citations and footnote omitted). “[I]n every case there must be a causal connection between the defendant’s use of violence or intimidation and his acquisition of the victim’s property.” Id. at 87, 283 N.E.2d at 843 (citations omitted).

The Majority concedes that under Massachusetts case law, a mere taking of property from the person of another by force however slight is insufficient to satisfy the Massachusetts unarmed robbery statute. (Majority Opinion at 364.) Rather, the taking must be accomplished by force and violence, or by intimidation and putting in fear. Certainly use of the language “force and violence” and “assault and putting in fear” implies more than a mere taking. It is worth noting that a violation of M.G.L.A. 265 § 19(b) exposes an offender to a potential life sentence. Also, the purpose of both the Massachusetts and Pennsylvania statutes is the same, to protect citizens from serious injury or the threat thereof and to deter violent conduct. See Ward, 856 A.2d at 1278 (finding New York’s and Pennsylvania’s robbery statutes substantially equivalent where “a review of the statutes reveals that both offenses prohibit the same conduct, i.e., employing intimidation through threat of bodily harm to facilitate a theft, and both statutes advance the public’s interest in protecting citizens from serious injury or the threat thereof’). See also Taylor, 831 A.2d at 666 (federal offense of armed bank robbery substantially equivalent to Pennsylvania’s robbery statute where “The conduct prohibited by both statutes, the resort to such force and intimidation to accomplish the individual’s purpose of taking, is the same.”) (citation and footnote omitted).

The Northrip court made clear that although not determinative, analysis of the underlying policy considerations is appropriate. Northrip, 603 Pa. at 554, 985 A.2d at 740. See also Castille, C.J., concurring (courts should not ignore the underlying public policy behind the criminal statutes in determining equivalency of offenses). Here, both 18 Pa.C.S.A. § 3701(a)(1)© & (ii), and M.G.L.A. 265 § 19(b) are intended to protect individuals from infliction of bodily harm or the threat thereof. The elements of both include the resort to force or intimidation to take from the person or presence of another that which does not belong to the perpetrator. Consequently, I would find that they are substantially equivalent for purposes of 42 Pa.C.S.A. § 9714.

*370Appellant complains that there is nothing in the record regarding the underlying facts of the 1977 Massachusetts conviction. Appellant states that there is no indication that violence or force was involved. (Appellant’s brief at 12.) Appellant argues that there is no showing that the 1977 conviction involved serious bodily injury to the victim. (Id. at 13.)

In Northrip, supra, our supreme court endorsed an elements-based approach as articulated in Shaw, and held that ordinarily, the sentencing court should not consider the actual facts underlying a defendant’s prior, out-of-state conviction:

This very specific and deliberate method of defining crimes of violence in Section 9714 demonstrates the Legislature’s clear intent that with respect to all crimes except burglary, the focus is on the crime for which the defendant was convicted, not the factual scenario underlying that crime. Section 9714 both directs and limits the sentencing court’s inquiry.

Northrip, 603 Pa. at 555-556, 985 A.2d at 741 (footnote omitted).2 Therefore, inquiry into the facts underlying appellant’s 1977 unarmed robbery conviction would be inappropriate.

I now turn to appellant’s 1985 conviction in Massachusetts for assault with intent to rob or steal. That statute provides as follows:

Whoever, not being armed with a dangerous weapon, assaults another with force and violence and with intent to rob or steal shall be punished by imprisonment in the state prison for not more than ten years.

M.G.L.A. 265 § 20 (emphasis added).

As in Section 19, unarmed robbery, Massachusetts’ assault with intent to rob statute requires that the actor use “force and violence.” I find that the threat of serious bodily injury is implicit in the language of the statute. Appellant cites Commonwealth v. Ramos, 6 Mass.App.Ct. 955, 383 N.E.2d 526 (1978), as support for the proposition that Section 20 encompasses the use of force however slight, and is therefore more akin to 18 Pa.C.S.A. § 3701(a)(l)(v), which is not an enumerated “crime of violence” under 42 Pa.C.S.A. § 9714(g). (Appellant’s brief at 14-15.) In Ramos, the evidence was deemed sufficient to support the defendant’s conviction for assault with intent to rob where he grabbed at $100 in bills which a supermarket cashier was holding in her hand. Ramos, 383 N.E.2d at 526. In the ensuing “tug-of-war,” the corners of the bills tore off in the defendant’s hands before he fled from the store. Id. The defendant’s action in grabbing at the money while the victim resisted by tugging back was held to constitute an assault with sufficient “force and violence” to satisfy the elements of the statute. Id.

The defendant’s actions in Ramos can hardly be said to constitute “force however slight,” where the corners of the bills actually tore off in his hand as a result of a persistent tug-of-war with the cashier. This was not a case of a pickpocket surreptitiously removing a wallet from an unsuspecting pedestrian. Certainly a jury could reasonably infer that the cashier feared *371injury as a result of the defendant’s aggressive actions. In Commonwealth v. Ordway, 66 Mass. 270, 1853 WL 6523 (1853), cited as contrary authority in Ramos, supra, the Supreme Court of Massachusetts held that merely snatching bills from the victim’s hand, thereby inadvertently touching his hand, did not constitute an assault with force and violence under the predecessor statute to M.G.L.A. 265 § 20. Id. at *1.

Therefore, appellant’s argument that Massachusetts’ assault with intent to rob statute encompasses the use of force however slight is not supported by the case law. Furthermore, the court in Northrip cautioned against the use of hypothetical factual scenarios in favor of an elements-based approach. Northrip, 603 Pa. at 554, 985 A.2d at 740.

The record reflects that appellant had a total of 92 arrests and 36 convictions, including 8 convictions for violent crimes. (Notes of testimony, 11/17/06 at 12.) Appellant had been arrested 30 times for violent crimes ranging from assault with a deadly weapon to kidnapping and rape. (Id.) He has terrorized the victim in this case, who suffered serious injuries. (Id. at 11.) The prosecuting attorney in this case described appellant’s criminal history as the worst he has seen. (Id. at 17.) As the trial court remarked, appellant has not shown any willingness to rehabilitate. (Id. at 22.) At resentencing on January 14, 2009, the court observed that appellant was precisely the type of incorrigible, violent serial offender the legislature envisioned when it enacted the three strikes law. (Notes of testimony, 1/14/09 at 5.)

I would determine that for the same reasons described in the analysis of M.G.L.A. 265 § 19, unarmed robbery, M.G.L.A. 265 § 20, assault with intent to rob or steal, is likewise an equivalent crime of robbery for purposes of 42 Pa. C.S.A. § 9714. The Massachusetts statutes under consideration and Pennsylvania’s robbery statute prohibit similar conduct, ie., using force or intimidation to accomplish a theft, and both advance the significant public interest in protecting citizens from serious injury or the threat thereof. Consequently, I would find that the crimes in question are substantially equivalent within the meaning and purpose of Section 9714 and thus the mandatory sentencing provisions of Section 9714 are applicable here. In my opinion, the trial court did not err when it found appellant’s prior Massachusetts convictions were previous crimes of violence laying the foundation for appellant’s sentence of life imprisonment without parole pursuant to 42 Pa. C.S.A. § 9714(a)(2).

For these reasons, I respectfully dissent.

. In 1981, "steals or takes” was substituted for "steals and takes” and "or from his immediate control” was inserted. St. 1981, c. 678, § 4, approved December 22, 1981. These minor amendments do not affect the analysis.

. The exception is the crime of burglary, which is defined differently in the burglary statute, 18 Pa.C.S.A. § 3502, and in 42 Pa. C.S.A. § 9714(g). It is for the sentencing court to determine whether a defendant’s act of burglary satisfies the factual requirements of Section 9714, i.e., “burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present.” Id. at 556 n. 9, 985 A.2d at 741 n. 9, citing Commonwealth v. Samuel, 599 Pa. 166, 961 A.2d 57 (2008).