Commonwealth v. Baldwin , 604 Pa. 34 ( 2009 )

OPINION

Justice GREENSPAN.

Appellant Blaine Baldwin appeals the Superior Court’s order affirming the judgment of sentence for one count of possession of a firearm without a license and one count of carrying a firearm on the public streets of Philadelphia. We allowed this appeal to consider whether 42 Pa.C.S. § 9765 requires that Appellant’s two convictions merge for sentencing purposes. We hold that a plain reading of Section 9765 reveals the General Assembly’s intent that crimes with different statutory elements be punished separately. As each of the two offenses here contains distinct elements, we conclude that, under Section 9765, the consecutive sentences imposed were proper. Accordingly, we affirm.

On January 13, 2006 at approximately 1:15 a.m., Philadelphia Police Officer Charles Waters observed a car making an illegal turn without signaling. The officer pulled the car over for a traffic violation. While asking the driver for his license and registration, Officer Waters noticed Appellant moving around in the left rear seat. Officer Waters instructed Appellant to place his hands on the headrest in front of him. Although Appellant initially complied, moments later, Officer Waters noticed that the Appellant was again moving. The officer ordered Appellant out of the car, at which time Officer Waters detected a strong odor of alcohol emanating from Appellant. After Appellant repeatedly ignored instructions to place his hands on the trunk of the vehicle, Officer Waters frisked Appellant and found a gun in his front pants pocket.

Appellant was charged with two counts of violating the Uniform Firearms Act: one count of carrying a firearm without a license, 18 Pa.C.S. § 6106, and one count of carrying a firearm on the public streets or property of Philadelphia, 18 Pa.C.S. § 6108. Appellant waived his right to a jury and, on December 19, 2006, was tried by the Honorable Leon Tucker of the Court of Common Pleas of Philadelphia County. The tidal court found Appellant guilty of both charges and sentenced him to three-and-a-half (3/6) to seven (7) years imprisonment for carrying a firearm without a license, and two (2) to four (4) years incarceration and one year of probation for carrying a firearm on the public streets of Philadelphia. The trial court ordered that the sentences be served consecutively.

Appellant filed an appeal, claiming that the trial court erred in imposing consecutive sentences. Appellant insisted that his convictions merged for sentencing purposes. The Superior Court affirmed the trial court’s judgment of sentence in an unpublished memorandum. We granted allowance of appeal on the following issue:

Should not this Court clarify the doctrine of sentencing merger, and its implications under constitutional double jeopardy analysis, under circumstances where the exact same set of facts satisfies the elements of two different offenses?

Appellant concedes the relevance of the applicable statute, 42 Pa.C.S. § 9765, Merger of Sentences, to our determination of his appeal. Appellant argues, however, that our prior case law should inform our application of Section 9765. Appellant relies specifically on this Court’s expressions in Commonwealth v. Jones, 590 Pa. 356, 912 A.2d 815 (2006) (plurality) and Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994). He argues that, based on these cases, this Court should decline to interpret Section 9765 as a strict statutory elements approach to merger. He proffers instead that this Court should conclude that under Section 9765 sentences must merge where the same narrow set of facts establishes both crimes. Any other interpretation, argues Appellant, triggers constitutional concerns, specifically a violation of double jeopardy protections.

The Commonwealth, on the other hand, argues that the General Assembly’s enactment of Section 9765 is an explicit implementation of a statutory elements approach to merger. According to the Commonwealth, Section 9765 clearly indicates the legislature’s intent that criminal defendants’ sentences do not merge unless all of the elements of one offense are included within the elements of the other offense. Appellant’s sentence, insists the Commonwealth, was proper according to the plain terms of Section 9765.

For decades, articulating the contours and application of the merger doctrine has proven a complex task for courts across this country, and this Court has been no exception. However, we confront the instant case in a unique posture, that is, we are required here to apply the statute in which our legislature has set out a standard for merger of sentences. We begin with our standard of review, our well-established standard of statutory interpretation, and the statute itself.

Whether Appellant’s convictions merge for sentencing is a question implicating the legality of Appellant’s sentence. Consequently, our standard of review is de novo and the scope of our review is plenary. See Commonwealth v. Collins, 564 Pa. 144, 764 A.2d 1056, 1057, 1057 n. 1 (2001). “The best evidence of legislative intent is the words used by the General Assembly.” In re Nomination Petition of Paulmier, 594 Pa. 433, 937 A.2d 364, 372 (2007). Further, this Court must, whenever possible, give effect to all provisions of a statute, 1 Pa.C.S. § 1921(a), and unless a phrase has a technical, peculiar, or otherwise defined meaning, that phrase must be construed according to its common and approved usage. 1 Pa. C.S. § 1903(a). Of course, this Court presumes that the General Assembly does not intend absurd or unreasonable results when it enacts a statute. 1 Pa.C.S. § 1922(1).

Section 9765 provides:

§ 9765. Merger of sentences

No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765.

The statute’s mandate is clear. It prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other.

Appellant’s conviction under Section 6106, for carrying a firearm without a license, required the Commonwealth to establish that Appellant was either carrying a firearm in a vehicle or concealed on his person, and that he had no license to do so.¹ Appellant’s conviction under Section 6108, for carrying a firearm on the public streets or public property of Philadelphia, required the Commonwealth to establish that Appellant was carrying a firearm either on the public streets or public property of Philadelphia and that he was neither licensed to do so nor exempt from the licensing requirement.² While each offense includes a shared element — the lack of a license to engage in the conduct complained of — each offense also includes an element the other does not. To violate Section 6106, a defendant must either carry a firearm in a vehicle, or carry a concealed firearm on or about his person. Section 6108 requires neither that the firearm be carried in a vehicle nor that it be concealed. Instead, to violate Section 6108, a defendant must carry a weapon on the public streets or public property of Philadelphia, a requirement not present under Section 6106. Thus, under the plain language of Section 9765, merger is prohibited in this case because each offense includes an element the other does not.

Appellant insists that this straightforward application of Section 9765 contradicts this Court’s decision in Jones, supra, as well as our merger jurisprudence generally. Appellant argues that the constitutional principles underlying our prior case law, specifically the protection against double jeopardy, preclude the consecutive sentences imposed upon him. In Jones, this Court considered whether sentences for burglary and criminal trespass merge when only one act was committed and that act would satisfy the nearly identical elements of both crimes. 912 A.2d at 816. The result was an Opinion Announcing the Judgment of the Court (OAJC), which comprised the view of three Justices, along with a special concurrence by a single Justice and a dissent by two Justices.³

The Jones OAJC undertook a comprehensive review of the state of the law of merger. In doing so, the opinion discussed the interplay between this Court’s jurisprudence and the potential impact of Section 9765. The crimes in Jones occurred before Section 9765 became effective, although the sentencing hearing took place after the enactment.⁴ The Jones OAJC recognized that the Commonwealth argued that merger is a question of legislative intent and that Section 9765 controlled the outcome. Nevertheless, the OAJC did not affirmatively state that Section 9765 applied in the case. The dissenting opinion stated that the statute absolutely applied; and the concurring opinion stated that the statute did not apply given the timing of its enactment.⁵ Although it is unclear precisely what separate effect, if any, the statute had on the resolution reached by the Jones OAJC, the opinion observed, in a footnote, that in passing the statute, the Legislature essentially adopted the test for merger this Court had articulated in Anderson, supra: “[Wjhether the elements of the lesser crime are all included within the elements of the greater crimes, and the greater offense includes at least one additional element which is different, in which case the sentences merge, or whether both crimes require proof of at least one element which the other does not, in which case the sentences do not merge.” Anderson, 650 A.2d at 24. The Jones OAJC further noted this Court’s prior merger jurisprudence, including Anderson, and derived from that case authority an approach to merger that included comparing the statutory elements of the offenses while also considering both the pleadings and the proof adduced at trial. 912 A.2d at 817-18, 819 n. 5, 824. Applying this approach, the Jones OAJC concluded that in light of the facts charged in the pleadings and the facts established at trial, the offense of criminal trespass merged with burglary for sentencing purposes, as the former was a lesser-included offense of the latter.

Appellant insists that Section 9765 does not dictate a pure elements test for merger and that Jones should control the result in this case. In support of his claim, Appellant focuses primarily on a single statement in the Jones OAJC, namely, that “this Court’s merger jurisprudence is not rendered irrelevant by Section 9765, for it is silent as to whether the facts of the case are pertinent to merger analysis ... and our jurisprudence in these cases implicates constitutional double jeopardy concerns.” 912 A.2d at 819. Expanding on this statement in the Jones OAJC, Appellant argues that Section 9765 cannot supplant this Court’s merger jurisprudence because it is grounded in the constitutional prohibition against double jeopardy. Appellant’s Brief at 13.

Appellant’s reliance on Jones and the Double Jeopardy Clause is misplaced for a number of reasons. First, Jones is a plurality opinion; as such it has no precedential weight in this case. See Kelley v. State Employees’ Ret. Bd., 593 Pa. 487, 932 A.2d 61, 67-8 (2007) (observing that a plurality decision of this Court did not constitute binding precedent). Second, the Jones OAJC does not affirmatively state that Section 9765 applied or that it was applying the statute in that case. Third, the Jones OAJC noted that the statute “is silent” on the issue of whether the facts of a case are relevant to the merger analysis. Jones, 912 A.2d at 819. Thus, Appellant’s attempt to proffer Jones as a controlling and clear statement of its position in this case fails. Moreover, Appellant’s constitutional argument and his reference to our jurisprudence prior to the enactment of Section 9765 simply do not support his claim for relief. In fact, they undermine it.

This Court’s pre-Section 9765 jurisprudence characterized the merger doctrine as, first and foremost, a rule of statutory construction. In Anderson, this Court wrote:

Generally, the doctrine of merger is a rule of statutory construction designed to determine whether the legislature intended for the punishment of one offense to encompass that for another offense arising from the same criminal act or transaction. If the legislature were to tell us that crime A merges into crime B, the problem would not arise, for the legislative intent would be manifest. R is in cases where the legislature has not given direction that we must devise a rule.

650 A.2d at 21 (emphasis added).

Applying Anderson in this case, one can say with certainty that the legislature has provided us with clear direction by its enactment of Section 9765. The statute makes the legislature’s intent with respect to merger manifest. That intent focuses solely on the elements of the offenses for which a criminal defendant has been convicted.

Further, double jeopardy jurisprudence of the United States Supreme Court confirms the role of the merger doctrine articulated in Anderson. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Court first set out its test for determining when separate statutory provisions constitute the “same offense” under the Double Jeopardy Clause: “[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304, 52 S.Ct, 180. In subsequent cases, the Court clarified that, in the context of successive prosecutions, the Double Jeopardy Clause protects specific interests:

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).

Significantly, the Court subsequently held that the Block-burger test applies only in the multiple punishment context as a rule of statutory construction, to be utilized only when the legislature has not indicated whether punishment for separate offenses is cumulative. See Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980) (“The assumption underlying the [Blockburger ] rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the “same offense,” they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.”) (emphasis added). See also Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (“Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the ‘same’ conduct under Blockburger, a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.”); Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) (“[T]he question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution.”).

In light of the United States Supreme Court’s commentary on this issue, we reject Appellant’s claim that the legislature’s decision to impose an elements test for merger of sentences violates double jeopardy protections. Indeed, the Court has explained: “[T]he Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors. The legislature remains free under the Double Jeopardy Clause to define crimes and fix punishments.... ” Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). See also Missouri v. Hunter, 459 U.S. at 366, 103 S.Ct. 673 (“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.”). This analysis reflects the legislature’s duty to criminalize each type of conduct it determines is injurious to the state.

A plain language interpretation of Section 9765 reveals the General Assembly’s intent to preclude the courts of this Commonwealth from merging sentences for two offenses that are based on a single criminal act unless all of the statutory elements of one of the offenses are included in the statutory elements of the other.⁶ Because the offenses of which Appellant was convicted in this case each contain an element the other does not, merger would not have been proper here. As a result, the Superior Court did not err in affirming the trial court’s imposition of separate sentences.

We therefore affirm the order of the Superior Court.

Justice EAKIN, Justice TODD, and Justice McCAFFERY join the opinion. Chief Justice CASTILLE files a concurring opinion in which Justice BAER joins. Justice SAYLOR files a concurring opinion.

1 . 18 Pa.C.S. § 6106. Firearms not to be carried without a license:

(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.

(2) A person who is otherwise eligible to possess a valid license under this chapter but carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.

18 Pa.C.S. § 6106(a)(1)-(2).

2 . 18 Pa.C.S. § 6108. Carrying firearms on public streets or public property in Philadelphia:

No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in [Philadelphia] unless:

(1) such person is licensed to carry a firearm; or

(2) such person is exempt from licensing under section 6106 of this title (relating to firearms not to be carried without a license).

18 Pa.C.S. § 6108(1)(2).

3 . Then-Justice Nigro did not participate in the decision of the case.

4 . Section 9765 was adopted on December 9, 2002 and made effective sixty days later on February 8, 2003. Jones committed his crimes in July of 2002 and was sentenced in March 2003.

5 . Then-Justice Newman authored the dissenting opinion in Jones. She took the position that the two offenses did not merge because: a) an element of criminal trespass (the requirement that the defendant know that he or she is not permitted to enter a building) was absent from the offense of burglary; and b) the burglary statute required that a defendant possess an intent to commit a crime upon entering a budding, which was absent from the criminal trespass statute. 912 A.2d at 827. Justice Newman viewed Section 9765 as a controlling statutory requirement "which mandated that all of the statutory elements of one offense coincide with the statutory elements of the other offense.” Id. at 826 (Newman, J., dissenting) (emphasis in original).

Justice Saylor agreed with Justice Newman's interpretation of Section 9765, but believed that application of the statute was not necessary. Id. at 825. (Saylor, J., concurring). Justice Saylor’s concurrence was the only opinion in Jones to address squarely the question of whether the timing of the statute might affect its applicability.

6 . It is no coincidence that we decline to characterize Section 9765 in terms any broader than the statute’s own language. It is, in the final analysis, an enactment of this Commonwealth's legislature that must be interpreted according to the rules of statutory construction, 1 Pa.C.S. § 1901 et. seq.

Labels, such as "pure elements test” and "strict elements approach,” have often led to greater mischief. For example, in Whalen, supra, the United States Supreme Court struggled to determine whether a felony murder conviction merged with a conviction for the underlying felony where a felony murder conviction could hinge on any one of six enumerated offenses. A "strict elements approach,” which does not consider the offenses as charged and proven in each particular case, invariably leads to the conclusion that the crimes do not merge. Nevertheless, a majority of the Court, relying on Blockburger (often used synonymously with "strict elements approach”) held that the two convictions merged for sentencing. In this regard, the Court demonstrated a recognition that examination of the elements of the crimes as charged is sometimes necessary, especially when dealing with an offense that can be proven in alternate ways.

Therefore, while Section 9765 indeed focuses on an examination of “statutory elements,” we cannot ignore the simple legislative reality that individual criminal statutes often overlap, and proscribe in the alternative several different categories of conduct under a single banner. See, e.g., Aggravated Assault, 18 Pa.C.S. § 2702 (defining seven distinct violations of law); Involuntary Deviate Sexual Intercourse, 18 Pa.C.S. § 3123 (setting forth eight separate violations). Consequently, in such cases, we caution that trial courts must take care to determine which particular "offenses,” i.e. violations of law, are at issue in a particular case. See, e.g., Commonwealth v. Johnson, 874 A.2d 66, 71 n. 2 (Pa.Super.2005) (recognizing that a particular subsection of a criminal statute may merge with another crime as a lesser-included offense even though a different subsection of that same statute may not).