NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF PENNSYLVANIA Appellee v. RICHARD CRUZ,
Appellant No. 730 MDA 2013
Appeal from the Judgment of Sentence January 23, 2013
In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0003412-2012
BEFORE: LAZARUS, J., OTT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J. FILED MAY 21, 2014
This is a direct appeal from the judgment of sentence imposed against Richard Cruz for a violent attack on his girlfriend. We affirm for the reasons articulated below.
Cruz struck his girlfriend on her head with a wooden broom handle and choked her while yelling that he was going to kill her. Fortunately, other individuals rescued the victim before Cruz was able
to carry out his threat. The Commonwealth filed a criminal information charging Cruz with attempted murder1, aggravated assault2, simple assault3 and terroristic threats4. The attempted murder and aggravated assault counts alleged that Cruz “did choke and/or strangle the victim.” The simple assault count alleged that Cruz “did strike the victim. . .on the head, causing damage to [her] head.” On November 14, 2012, Cruz entered an open guilty plea to all charges. The court ordered a presentence investigation5.
At sentencing, the parties addressed the information gathered during the presentence investigation, particularly the serious injuries to the victim’s back and jaw. N.T., 1/23/13, pp. 6-8, 10-11. The court sentenced Cruz to consecutive terms of imprisonment of 6½-16 years for attempted murder, 1-2 years for simple assault and 1-2 years for terroristic threats (an aggregate of 8½-20 years imprisonment). The court observed that the sentence for attempted murder was within the standard range of the Sentencing Guidelines, but the sentences for simple assault and terroristic threats were above the Guidelines due to the heinous nature of the attack and the terror it
1 18 Pa.C.S. § 901. 2 18 Pa.C.S. § 2702. 3 18 Pa.C.S. § 2701. 4 18 Pa.C.S. § 2706.
5 The detailed presentence investigation report is in the certified record. Cruz does not contend that any relevant information is missing from the report.
caused the victim. Id., pp. 14-16. The court determined that the aggravated assault and attempted murder convictions merged for sentencing purposes. Cruz filed timely post-sentence motions challenging the excessiveness of his sentence which the court denied. He then filed a timely appeal and timely statement of matters complained of on appeal.
Cruz raises two issues in this direct appeal, which we rephrase for the sake of brevity: (1) his sentence is illegal because his attempted murder and simple assault convictions merge for sentencing purposes, and (2) his sentences for simple assault and terroristic threats are manifestly excessive, because they run consecutively to each other and to the attempted murder sentence, and because the minimum sentences on these counts exceed the aggravated range of the Sentencing Guidelines without adequate justification.
With regard to Cruz’s first issue, we conclude that Cruz’s convictions for attempted murder and simple assault do not merge. Even though his act of simple assault occurred immediately before his act of attempted murder - - indeed, the former act paved the way for the latter - - these acts are separate and distinct for purposes of Pennsylvania’s merger statute, 42 Pa.C.S. § 9765.
A claim that crimes should merge for sentencing purposes raises a nonwaivable challenge to the legality of the sentence. Commonwealth v. Baldwin, 604 Pa. 34, 985 A.2d 830, 833 (2009). Therefore, our standard of review on this pure issue of law is de novo, and our scope of review is plenary. Id.
The merger statute, 42 Pa.C.S. § 9765, provides:
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.
Id. Section 9765 prohibits merger unless two distinct facts are present: (1) all elements of one offense are subsumed within the elements of the other offense, and (2) the crimes arise from a single criminal act. Baldwin, 985 A.2d at 833.
Cruz satisfies the first test. He pled guilty to (1) simple assault under 18 Pa.C.S. § 2701(a)(1), which prohibits a person from “attempt[ing] to cause or intentionally, knowingly or recklessly caus[ing] bodily injury to another”; and (2) attempted murder under 18 Pa.C.S. § 901(a), which provides that “a person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” The crime Cruz attempted to commit was criminal homicide,
i.e., “intentionally...caus[ing] the death of another human being.” 18 Pa.C.S. § 2501(a). The act of attempted murder (a substantial step towards an intentional killing) subsumes the act of simple assault (attempt to inflict bodily injury), and the intent necessary for attempted murder (specific intent to kill) subsumes the mens rea required for simple assault (intent, knowledge or recklessness). In short, simple assault is a lesser-included offense of attempted murder. Appellate precedents lead to the same conclusion. Simple assault is a lesser included offense of aggravated assault, Commonwealth v. Novak, 564 A.2d 988, 989 (Pa.Super.1989), and aggravated assault is a lesser included offense of attempted murder. Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994). Thus, under these decisions, simple assault is a lesser included offense of attempted murder.
Cruz, however, fails to meet the second merger test, because his crimes do not “arise from a single criminal act.” 42 Pa.C.S. § 9765. The simple assault information to which he pled guilty alleged that he struck his girlfriend’s head with a wooden object, while the attempted murder information to which he pled guilty alleged that he strangled his girlfriend, a separate and distinct act. Since one event immediately followed the other, it may seem counterintuitive to treat them as separate criminal acts. Nevertheless, we do so in view of the
reasoning in Commonwealth v. Petterson, 49 A.3d 903 (Pa.Super.2012).
In Petterson, the defendant broke into the victim’s bedroom, struck her in the head with a hammer, dragged her out of the bedroom, stabbed her over ten times in her chest and back, placed a plastic bag over her head and tried to suffocate her. A jury found him guilty of three counts of aggravated assault: one for striking her head with the hammer, another for stabbing her with a knife and a third for attempting to suffocate her with a bag. The trial court imposed consecutive sentences for these convictions totaling 18½-50 years’ imprisonment.
On direct appeal, the defendant argued that his aggravated assault convictions merged for sentencing because they collectively occurred during a single criminal act. A panel of this Court disagreed, stating: “While the three assaults all occurred during the same criminal episode, Appellant engaged in three distinct acts that each constitutes an aggravated assault.” Id., 49 A.3d at 911. The panel explained:
When considering whether there is a single criminal act or multiple criminal acts, the question is not ‘whether there was a “break in the chain” of criminal activity.’ [Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa.Super.2007)] (quoting Commonwealth v. Wesley, 860 A.2d 585, 592 (Pa.Super.2004)). Th[e] issue is whether ‘the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of
the additional crime, [and if he does,] then the actor will be guilty of multiple crimes which do not merge for sentencing purposes.’ Commonwealth v. Belsar, 544 Pa. 346, 676 A.2d 632, 634 (1996) (quoting Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228, 1233 (1989)). We have no reservation in concluding that Appellant engaged in at least three separate, criminal acts, and that each individual act could independently fulfill the elements of aggravated assault. Although the time between the separate acts was relatively short, the three assaults were committed with different weapons and caused distinct injuries to different parts of the victim’s body. When Appellant struck the victim in the back of the head with a hammer, he committed an aggravated assault. When Appellant stabbed the victim multiple times in the chest and back, he committed at least one aggravated assault. And Appellant committed an aggravated assault when he attempted to suffocate the victim by placing a plastic bag over her head.
Appellant is not entitled to a volume discount for these crimes simply because he managed to accomplish all the acts within a relatively short period of time. Id. (citing Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20, 22 (1994)). Consequently, we hold that Appellant was not entitled to have his three aggravated assault sentences merge.
Id. at 912.
Under Petterson’s reasoning, we conclude that Cruz committed two separate crimes. Cruz committed the two attacks with different instrumentalities and caused distinct injuries to different parts of the victim’s body. When he struck the victim in the back of the head with a wooden broom handle, he committed simple assault. When he wrapped his hands around the victim’s throat and strangled her, he
committed attempted murder. We cannot conflate the two events, even though they occurred extremely close in time.
In his second issue on appeal, Cruz argues that his sentences for simple assault and terroristic threats are manifestly excessive, because they are consecutive to one another and to Cruz’s sentence for attempted murder, and because they exceeded the aggravated range of the Sentencing Guidelines despite the absence of special circumstances. Cruz does not challenge his sentence of 6½-16 years imprisonment for attempted murder.
This issue presents a challenge to the discretionary aspects of Cruz’s sentence. There is no automatic right to appeal the discretionary aspects of a sentence, and we deem an appeal of this nature as a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.Super.2007). In order to review this type of appeal, we apply a four-part test:
(1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super.2010) (citing Commonwealth v. Evans, 901 A.2d 528 (Pa.Super.2006)). We must evaluate whether a particular issue constitutes a substantial question about the appropriateness of sentence on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super.2001).
Cruz satisfies the first three requirements. He filed a timely motion for modification of sentence and timely appeal, and he included a Rule 2119(f) statement in his brief. Moury, 992 A.2d at 170.
Turning to the fourth requirement, to show the existence of a substantial question that the sentence is inappropriate, the appellant must set forth a plausible argument that the sentence violates a particular provision of the Sentencing Code or is contrary to the fundamental norms underlying the sentencing process. Commonwealth v. Hartle, 894 A.2d 800, 805 (Pa.Super.2006). It is essential to remember in this context that sentencing is a matter within the sound discretion of the trial court, and we will not disturb a sentence absent an abuse of discretion. Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation omitted). An abuse of discretion is not just an error in judgment, and on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or
the result of partiality, prejudice, bias, or ill-will. Id. When imposing a sentence,
the sentencing court is required to consider the sentence ranges set forth in the Sentencing Guidelines, but it [is] not bound by the Sentencing Guidelines. Commonwealth v. Yuhasz, 592 Pa. 120, 923 A.2d 1111, 1118 (2007) (‘It is well established that the Sentencing Guidelines are purely advisory in nature.’); Commonwealth v. Walls, 926 A.2d 957, 965 [(Pa. 2007)] (referring to the Sentencing Guidelines as ‘advisory guideposts’ which ‘recommend ... rather than require a particular sentence’). The court may deviate from the recommended guidelines; they are ‘merely one factor among many that the court must consider in imposing a sentence.’ Yuhasz, 923 A.2d at 1118. A court may depart from the guidelines ‘if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community.’ Commonwealth v. Eby, 784 A.2d 204, 206 (Pa.Super.2001). When a court chooses to depart from the guidelines however, it must ‘demonstrate on the record, as a proper starting point, his awareness of the sentencing guidelines.’ Eby, 784 A.2d at 206. Further, the court must ‘provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines.’ 42 Pa.C.S.A. § 9721(b).
Sheller, 961 A.2d at 190.
Cruz has raised a substantial question for review. There has been considerable dispute over the years as to whether a challenge to consecutive sentences on grounds of excessiveness or disproportionality constitutes a “substantial question” for review. Recently, a panel of this Court held, after thorough and insightful review of the relevant decisions, that the appellant raises a substantial
question when he claims both that the imposition of consecutive sentences is disproportionate and that the sentencing court did not consider the nature of his offenses or provide adequate reasons for its sentence. Commonwealth v. Dodge, 77 A.3d 1263, 1271-72 (Pa.Super.2013). Cruz’s challenge to his sentences for simple assault and terroristic threats fit within this paradigm, so we will accept his argument for review.
Although Cruz raises a substantial question, we conclude that he is not entitled to relief. Since the record reflects that the trial court reviewed his presentence investigation report, we presume that the court properly considered and weighed all relevant factors in fashioning the defendant's sentence. Commonwealth v. Baker, 72 A.3d 652, 663 (Pa.Super.2013) (citing Commonwealth v. Fowler, 893 A.2d 758, 767 (Pa.Super.2006)). Cruz fails to point to anything that rebuts this presumption. Further, the court understood the applicable guideline range of sentences and explained its rationale for imposing sentences above the aggravated range of the Sentencing Guidelines. N.T., 1/23/13, pp. 14-16. It imposed a sentence of 1-2 years’ imprisonment for simple assault because, “as simple assaults go,” clubbing the victim on the head with a wooden broom handle “was exceptionally violent and was the precipitating blow that started
sentence of 1-2 years’ imprisonment for terroristic threats because the fact that Cruz was telling the victim he was going to kill while he was in fact trying to kill her terrorized her “beyond any and all belief.” Id., pp. 15-16. Therefore, we conclude that the court acted within its discretion in imposing consecutive terms of 1-2 years’ imprisonment on Cruz’s simple assault and terroristic threats convictions.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
