2005 Pa. Super. 123 - Commonwealth v. Johnson

How this case has been cited

Cited by 13 later decisions — most recently July 2020

13 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

LALLY-GREEN, J.,

¶1Concurring.:

¶2¶ 1 While I agree with the result of the Majority’s well-reasoned opinion, I write separately to explain my understanding of the application of the merger doctrine in the instant matter. The Majority concludes that attempted murder and aggravated assault under 18 Pa.C.S.A. § 2702(a)(2) do not merge because each crime contains an element that the other does not. Majority Opinion, at 8.

¶3¶ 2 In my opinion, we first focus on whether the elements of the lesser crime are all included within the greater crime. See, Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20, 24 (1994) (“Our inquiry.. .is whether the elements of the lesser crime are all included within the elements of the greater crime.... ”). Under § 2702(a)(2), the Commonwealth must prove that the aggravated assault victim is an enumerated officer in the performance of duty. Attempted murder, 18 Pa.C.S.A. § 901, contains no such requirement.

¶4¶ 3 Here, since the elements of the lesser crime are not all included in the greater crime, our inquiry stops. In other words, the elements of aggravated assault, the lesser crime, are not all included within the elements of attempted murder, the greater crime, and the two do not merge. I believe we need go no further.

¶5 *75¶ 4 Accordingly, I respectfully concur in the result.