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2024 PA Super 175
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHARLES STEVENS :
:
Appellant : No. 1495 MDA 2023
Appeal from the Judgment of Sentence Entered June 2, 2023
In the Court of Common Pleas of Huntingdon County Criminal Division at
No(s): CP-31-CR-0000203-2022
BEFORE: OLSON, J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY KUNSELMAN, J.: FILED: AUGUST 8, 2024
Charles Stevens appeals from the judgment of sentence imposing two
to four years’ incarceration after a jury convicted him on four counts – two
counts of possessing an offensive weapon and two counts of possessing a
weapon or implement of escape.1 Stevens contends Prohibited Offensive
Weapons is a lesser, included offense of Weapons or Implements of Escape.
Thus, he believes that the sentencing court should have merged his four
convictions into two. As a matter of first impression, we hold that those
offenses do not merge for purposes of sentencing and affirm.
On December 19, 2021, Stevens was an inmate at SCI-Huntingdon, and
the corrections officers searched his cell. They discovered “a homemade knife
under his mattress.” Trial Court Opinion, 1/12/24, at 1. Stevens admitted to
the officers that the knife was his. He also had a second weapon hidden on
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* Former Justice specially assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 908(a) and 5122(a)(2).
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his person, a homemade slungshot,2 which he voluntarily surrendered. It was
formed using “a heavy, electric motor from a fan, approximately 2½-3 inches
square, tied to a homemade lanyard . . . approximately a foot or so long.” Id.
at 1-2.
The Commonwealth charged Stevens with multiple weapon-possession
offenses for each of the two homemade items. The case proceeded to a jury
trial.
During his opening statement, Stevens’ attorney conceded that the facts
related above were true. Rather than attack the Commonwealth’s evidence
directly, he framed the case as one of potential self-defense. He suggested
to the jury that Stevens possessed the homemade weapons to protect himself,
if another inmate ever threatened or assaulted him.
Furthermore, while cross-examining the Commonwealth’s witnesses,
Stevens’ attorney established that Stevens was one of the smaller inmates in
the prison, that the corrections officers had never seen Stevens use the two
weapons to attack anyone, that the weapons could be used defensively or as
show of force to prevent potential violence, and that the United States
Congress passed the Prison Rape Elimination Act (“PREA”).3 A correction
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2 THE MERRIAM-WEBSTER DICTIONARY defines “slungshot” as “ a striking weapon
consisting of a small mass of metal or stone fixed on a flexible handle or
strap.” Merriam-Webster Online, Definition of “Slungshot,” available at
https://www.merriam-webster.com/dictionary/slungshot (last visited
7/19/24).
3 34 U.S.C. §§ 30301-30309.
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officer explained that, for prison staff, the federal statute mandates training
on how “to report and how to handle evidence.” N.T., 3/9/23, at 40.4
After the Commonwealth rested its case-in-chief, Stevens elected not to
testify. Instead, he asked the trial court to take judicial notice of the PREA
and to read the following congressional findings from the statute to the jury:
(2) Insufficient research has been conducted and insufficient data
reported on the extent of prison rape. However, experts have
conservatively estimated that at least 13 percent of the inmates
in the United States have been sexually assaulted in prison. Many
inmates have suffered repeated assaults. Under this estimate,
nearly 200,000 inmates now incarcerated have been or will be the
victims of prison rape. The total number of inmates who have
been sexually assaulted in the past 20 years likely exceeds
1,000,000.
…
(5) Most prison staff are not adequately trained or prepared to
prevent, report, or treat inmate sexual assaults.
(6) Prison rape often goes unreported, and inmate victims often
receive inadequate treatment for the severe physical and
psychological effects of sexual assault--if they receive treatment
at all.
…
(12) Members of the public and government officials are largely
unaware of the epidemic character of prison rape and the day-today horror experienced by victimized inmates.
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4 According to the United States Court of Appeals for the Third Circuit, the
PREA, “passed unanimously by Congress, explicitly seeks to establish a zero
tolerance standard for the incidence of prison rape in the prisons of the United
States.” Ricks v. Shover, 891 F.3d 468, 477 (3d Cir. 2018). While “enacted
for the purpose of remedying the inadequate response of corrections officials
to prison rape . . . the PREA did not . . . create any new rights for inmates.”
Lee v. Kramer,
2017 WL 6729865 at *3 (W.D. Pa. 2017).
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34 U.S.C.A. § 30301.
The Commonwealth objected on the grounds that the congressional
findings were irrelevant, prejudicial, and potentially misleading to the jury.
See N.T., 3/9/23, at 68-69. The prosecuting attorney argued that there were
no “allegations of sexual assault or rape throughout this trial” and Stevens did
not establish “his initial burden of the self-defense charge.” Id. at 69.
In response, defense counsel conceded that the congressional findings
“maybe [do] not apply to Mr. Stevens, but to the institution where he was a
resident, an inmate at the time. So, I think it’s a little broader . . . applying
to all state correctional institutions that are in the Commonwealth of
Pennsylvania [and,] in fact, throughout the United States.” Id.
The trial court ruled from the bench, “it’s a proper question to ask the
court to take judicial notice of statutes. But the court’s problem . . . is . . .
the relevance to the evidence that has been presented during the course of
the trial.” Id. at 71. In other words, the trial court did not refuse to admit
the statute on the grounds that it could not take judicial notice of the PREA.
It sustained the Commonwealth’s objection that the proffered congressional
findings were irrelevant to the case.
The defense rested, and the trial court rejected Stevens’ request for a
jury instruction on self-defense. The jury convicted Stevens of two counts of
possessing a prohibited offensive weapon and of two counts of possessing a
weapon or implement of escape. The sentencing court refused to merge the
four convictions into two. Stevens timely appealed.
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He raises two appellate issues:
1. Whether the trial court erred and/or abused its discretion in
failing to take judicial notice of certain provisions of the
[PREA] in Stevens’ request/attempt to assert a self-defense
claim at trial?
2. Whether the [sentencing] court erred and/or abused its
discretion in failing to merge the sentences on the two
counts of . . . Prohibited Offensive Weapons . . . and two
counts of . . . [Weapons or Implements of Escape, because]
their elements are sufficiently similar to be identical?
Stevens’ Brief at 5 (some capitalization removed). We consider each issue in
turn.
A. Exclusion of the PREA Findings from Evidence
First, Stevens claims the trial court erred or abused its discretion by not
taking judicial notice of the congressional findings within the first section of
the PREA. As explained above, however, the trial court did not refuse to take
judicial notice of the federal statute. Instead, the court refused to admit the
congressional findings on relevancy grounds. Thus, the issue, as framed by
Stevens on appeal, does not comport with the procedural posture of the case,
and the part of his argument on Pennsylvania Rule of Evidence 201 (on judicial
notice) is unnecessary, because the trial court did not reject the evidence on
that basis. See id. at 20-22.
Even so, the first part of Stevens’ argument contends the PREA findings
were relevant to his theory that he possessed the weapons as a form of
prophylactic self-defense. He explains that he wished to exercise his right not
to testify at trial, while simultaneously creating a basis from which the jury
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could infer he was fearful for his safety while in prison. Based on that alleged
fear, Stevens suggests that he was justified in hiding the homemade knife
under his mattress and the homemade slungshot on his person. He therefore
sought to admit the findings of the PREA to prove that he had an estimated
13% chance of being raped in prison. Stevens asserts that “the PREA statute
was highly relevant, but the trial court disagreed . . . .” Id. at 17. Id. As
such, he believes “that the trial court erred in excluding this cited factual
evidence from the [PREA] meaning that the conviction and sentences . . .
must be vacated” and a new trial awarded. Id. at 18.
Stevens’ relevancy argument reflects a failure to appreciate the full
implications of our deferential standard of review for evidentiary issues,
despite Stevens correctly stating that standard. At the outset of his brief, he
acknowledged that:
When we review a trial court ruling on admission of
evidence, we must acknowledge that decisions on admissibility are
within the sound discretion of the trial court and will not be
overturned absent an abuse of discretion or misapplication of law.
In addition, for a ruling on evidence to constitute reversible error,
it must have been harmful or prejudicial to the complaining party.
An abuse of discretion is not merely an error of judgment,
but if in reaching a conclusion the law is overridden or misapplied,
or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will, as shown by the
evidence or the record, discretion is abused.
Id. at 2 (quoting Commonwealth v. Talley, 236 A.3d 42, 55 (Pa. Super.
2020), aff’d,
265 A.3d 485 (Pa. 2021).
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Despite properly identifying our deferential standard of review at the
outset of his brief, Stevens does not present this Court with an abuse-of-
discretion argument. Critically, he disregards the standard’s prohibition – i.e.,
that an abuse of discretion “is not merely an error of judgment.” Talley,
236 A.3d at 55 (emphasis added). In crafting his appellate arguments
regarding the excluded PREA findings, Stevens neglects our standard of review
and simply explains why he disagrees with the trial court’s ruling.
His argument on relevancy is merely a claim that the trial court erred in
judgment. He does not identify any of the three types of abuse of discretion
in the trial court’s reasoning from the bench or in its 1925(a) Opinion,
concerning its ruling that the congressional findings were irrelevant under the
facts of this case. Thus, Stevens makes a de novo argument and asks us to
substitute our judgment for that of the trial court. This we may not do.
Even if we disagreed with a trial court’s judgment that the PREA findings
were irrelevant under the facts that Stevens produced while cross-examining
the Commonwealth’s witnesses, we have long held that an “abuse of discretion
is not merely an error of judgment, but rather a misapplication of the law or
an unreasonable exercise of judgment.” Johnson v. Johnson, 222 A.3d 787,
789 (Pa. Super. 2019). Thus, it is insufficient to convince us that “the lower
tribunal reached a decision contrary to the decision that the appellate court
would have reached.” B.B. v. Dep't of Pub. Welfare,
118 A.3d 482, 485
(Pa. Cmwlth. 2015) (some punctuation omitted). Instead, Stevens needs to
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persuade us that one of the three types of abuses of discretion occurred. See
Talley, supra.
As we have repeatedly explained, “to mount an abuse-of-discretion
attack against the trial court’s [ruling, Stevens] needed to demonstrate how
the trial court’s ruling overrode the law; was manifestly unreasonable; or the
product of bias, prejudice, ill-will or partiality.” Commonwealth v. Rogers,
259 A.3d 539, 541 (Pa. Super. 2021), appeal denied,
280 A.3d 866 (Pa.
2022). Stevens make no such contentions when arguing his evidentiary issue.
As such, he does “not contend, much less persuade us, that the trial court
overrode the law; made a manifestly unreasonable decision; or was motivated
by bias, prejudice, or ill will.” Id. at 542.
Because Stevens fails to prove that an abuse of discretion occurred, we
dismiss his first appellate issue as meritless.
B. Merger of Convictions
As his second issue, Stevens contends that two of his sentences are for
lesser, included offenses of his other two sentences. He frames the issue as
whether all of the statutory elements of the Prohibited Offensive Weapons
charges are included in the statutory elements of the Weapons or Implements
of Escape charge.5 See Stevens’ Brief at 24. In Stevens’ view, his convictions
must merge from four to two, as a matter of law.
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5 Neither party cites any case law addressing the issue of whether the two
statutes before us merge for purposes of sentencing and our research revealed
none.
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“A claim that crimes should have merged for sentencing purposes raises
a challenge to the legality of the sentence.” Commonwealth v. Quintua, 56
A.3d 399, 400 (Pa. Super. 2012). “Therefore, our standard of review is de
novo, and our scope of review is plenary.”
Id.
The General Assembly has mandated “crimes shall merge for sentencing
purposes [if] 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.” 42 Pa.C.S.A. § 9765. “The only way two crimes merge for
sentencing is if all elements of the lesser offense are included within the
greater offense.” Commonwealth v. Merced, 308 A.3d 1277, 1282 (Pa.
Super. 2024), reargument denied (Mar. 27, 2024). In other words, “if both
crimes require proof of at least one element that the other does not, then the
sentences do not merge.”
Id.
Here, the crimes in question are (1) Prohibited Offensive Weapons and
(2) Weapons or Implements of Escape. The crime of Prohibited Offensive
Weapon occurs when, “except as authorized by law, [a person] makes repairs,
sells, or otherwise deals in, uses, or possesses any offensive weapon.” 18
Pa.C.S.A. § 908(a). The crime of Weapons or Implements of Escape occurs
when “[a]n inmate . . . unlawfully procures, makes or otherwise provides
himself with, or unlawfully has in his possession or under his control, any
weapon, tool, implement or other thing which may be used for escape.” 18
Pa.C.S.A. § 5122(a)(2).
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In his brief, Stevens focuses primarily on the definitions of “offensive
weapon” in Section 908(c) and of “weapon” in Section 5122(b)(2) of the
Crimes Code. He observes, and we agree, that “weapon,” for purposes of the
crime of Weapons or Implements of Escape, is more broadly defined than the
definition of “offensive weapon,” for purposes of Prohibited Offensive
Weapons.6 Stevens therefore contends that the crime of Prohibited Offensive
Weapons is necessarily a lesser, included offense of Weapons or Implements
of Escape.
However, this ignores the fact that the two statutes have unique
elements. The Prohibited Offensive Weapons statute applies to any “person”
who possesses the weapons defined in that section. 18 Pa.C.S.A. § 908(a).
By contrast, the Weapons or Implements of Escape statute may only be
committed by “an inmate” of statutorily delineated institutions, including state
prisons. 18 Pa.C.S.A. § 5122(a)(2).
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6 As used in Weapon or Implement of Escape, “the word ‘weapon’ means any
implement readily capable of lethal use and shall include any firearm,
ammunition, knife, dagger, razor, other cutting or stabbing implement or club,
including any item which has been modified or adopted so that it can be used
as a firearm, ammunition, knife, dagger, razor, other cutting or stabbing
implement, or club.” 18 Pa.C.S.A. § 5122(b)(2). As used in Prohibited
Offensive Weapons, the term “offensive weapons” means any “bomb,
grenade, machine gun, sawed-off shotgun with a barrel less than 18 inches,
firearm specially made or specially adapted for concealment or silent
discharge, any blackjack, sandbag, metal knuckles, any stun gun, stun baton,
taser or other electronic or electric weapon or other implement for the
infliction of serious bodily injury which serves no common lawful purpose.” 18
Pa.C.S.A. § 908(c).
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In the context of possessing drugs within the prison context, this Court
has held that the element of being an inmate prevented merger of convictions
for possession with intent to deliver (“PWID”) and possession of drugs by an
inmate. The crime of “possession by an inmate does not merge with PWID
or controlled substance to prison, because possession by an inmate requires
that the individual possessing the contraband is an inmate or prisoner, a
requirement absent from both PWID and controlled substance to prison.”
Commonwealth v. Sarvey, 199 A.3d 436, 451 (Pa. Super. 2018). “This
disparate element, absent from both of the other statutes, renders merger
improper.”
Id. (citing Commonwealth v. Baldwin,
985 A.2d 830, 834 (Pa.
2009). The same is true when comparing the Prohibited Offensive Weapons
and the Weapons or Implements of Escape statutes.
Thus, those two crimes have unique elements regarding the attendant
circumstances of the actor’s status at the time of the actus reus. As such, the
crimes do not merge for sentencing purposes, and we dismiss Stevens’ final
appellate issue as warranting no relief.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 8/8/2024
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