351 Pa. Super. 320 - Commonwealth v. Sparks

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34 state decisions

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BROSKY, Judge,

¶1concurring:

¶2Although I agree with the result reached by the majority, I disagree with the majority’s analysis of the merger issue.1

¶3This is not a case in which the crimes grew out of the same physical act. If it were, then discussion of whether or not appellant’s conduct clearly injured separate interests of the Commonwealth would be appropriate. This is, rather, a *329case in which separate physical acts were involved: (1) punching the victim in the jaw, thereby breaking it, and (2) forcibly engaging in intercourse with the victim. In such a case as this, in which the crimes arise out of the same criminal transaction or episode, but not the same physical act, the relevant and sole inquiry is whether the two crimes necessarily involve one another, such that proof of the same facts will prove both crimes. Commonwealth v. Williams, 344 Pa.Super. 108, 496 A.2d 31 (1985).

¶4In the instant case, the jury could have found appellant guilty of rape by engaging in sexual intercourse with the victim by threat of forcible compulsion or by forcible compulsion which did not cause serious bodily injury. It was not necessary for the jury to have found that appellant caused serious bodily injury to the victim in order to find him guilty of rape. On the other hand, the jury would have been justified in finding that appellant caused serious bodily injury to the victim (the broken jaw) without finding that he engaged in sexual intercourse with her. Utilizing this analysis then, I agree that the two offenses do not merge.2

¶5. I also note a possible conflict between the majority opinion and Commonwealth v. Kozrad, 346 Pa.Super. 470, 499 A.2d 1096 (1985), in that Kozradindicates that there are two tests for merger currently employed in Pennsylvania, while the majority opinion seems to indicate that there is only one test to be used in all instances.

¶6. The result reached by our court is inconsistent with the result reached by the court in Commonwealth ex rel. Shaddock v. Ashe, 340 Pa. 286, 17 A.2d 190 (1941); however, as noted in Williams, "the question of merger will often turn on an appraisal of the precise facts of the case.” 344 Pa.Superior Ct. at 143, 496 A.2d at 50.