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HomeMy WebLinkAboutCP-21-CR-0192-2004 COMMONWEALTH IN THE COURT OF COMMON PLEAS 0 F CUMBERLAND COUNTY, PENNSYLVANIA v. YERKO A. MOLINA NO. CP-21-CRIMINAL 192 - 2004 IN RE: DEFENDANT'S POST SENTENCE MOTIONS BEFORE GUIDO, J. OPINION AND ORDER OF COURT After a trial by jury, the defendant was convicted of attempted murder1, aggravated assault2, simple assaule, recklessly endangering4, and criminal mischiefs. The offenses all arose from an incident that occurred on December 18, 2003. In a nutshell the defendant rammed his car into his wife's vehicle, forcing her off the road.6 He then went to his wife's car where he assaulted her viciously with a butcher knife.7 He also stabbed himself. 8 On October 5, 2004 he appeared before us to be sentenced. Both counsel agreed that the charge of simple assault merged into the aggravated assault charge for purposes of sentencing. They further agreed that more of the other charges merged.9 We sentence defendant to 7 1Iz to 15 years in prison in conviction with the attempted murder charge. 10 We also imposed a consecutive sentence of 1 - 3 years on the aggravated assault 1 18 Pa. C.S.A. ~ 901 and 2501. 2 18 Pa. C.S.A. ~ 2702(a)(1). 3 18 Pa. C.S.A. ~ 2701(a)(1). 4 18 Pa. C.S.A. ~ 2705. 5 18 Pa. C.S.A. ~ 3304(a)(2). He was also convicted of two summary offenses which are not at issue. 6 See Notes of Testimony, pp. 87-89. 7 See Notes of Testimony, pp. 88-89. 8 See Notes of Testimony, pp. 89. 9 See Sentencing Proceedings, pp. 4-5. 10 See Sentencing Order of October 5, 2004, as modified by our Order of October 12,2004. CP-21-CRIMINAL 192 - 2004 charge.ll On the charges of recklessly endangering and criminal mischief we imposed sentences of 1 - 2 years which were to run consecutive to the attempted murder charge and concurrent to the aggravated assault charge and to each other. 12 Defendant was represented by privately retained trial counsel. Immediately after sentence, at defendant's request, we appointed the public defender to represent him in connection with the filing of post sentence motions and on appeal. The public defender has filed timely post sentence motions in which he contends that the aggravated assault charge merges into the attempted murder charge. For the reasons hereinafter set forth, we agree. The Supreme Court has recognized that "(t)he question of when sentences should merge is not an easy problem." Commonwealth v. Anderson, 538 Pa. 574,650 A.2d 20, 21 (1994). In an attempt, to clarifying its prior rulings on the issue it stated: We now hold that in all criminal cases, the same facts may support multiple convictions and separate sentences for each conviction except in cases where the offenses are greater and lesser included offenses. 650 A.2d at 22 (emphasis added). The Anderson Court also specifically held that "the offense of aggravated assault is necessarily included within the offense of attempted murder". 650 A.2d at 24. Applying the specific holding in Anderson to the case at bar we are satisfied that defendant's conviction for aggravated assault merged into his conviction for the more serious charge of attempted murder. The Commonwealth contends that the Supreme Court enter decisions in Commonwealth v. Belsar, 544 Pa. 346,676 A.2d 632 (1996) and Commonwealth v. 11 See Sentencing Order of October 5, 2004. 12 See Sentencing Order of October 5, 2004. By implication they were also to run consecutive to the attempted murder charge. 2 CP-21-CRIMINAL 192 - 2004 Gatling, 570 Pa. 34, 807 A2d 890 (2002). In Belsar the defendant was convicted of aggravated assault and attempted murder. He shot the victim five times, paused to look for his car keys and then kicked him in the head. The Supreme Court held that "(w)hen a criminal act has been committed, broken off, and then resumed, at least two crimes have been committed and sentences may be imposed for each." 676 A2d at 634. Consequently, the court upheld separate sentences for aggravated assault (the kicking) and attempted murder (the shooting). In Gatling a plurality of the Court a "break in the chain" of events rule. However, the rule did not garner the support of a majority of the justices. In the instant case, the victim described in chilling detail the events that forced the basis of the attempted murder and aggravated assault convictions: Q. SO when you ran off the road, where did you come to rest? A In a field beside a really big tree that I almost hit. Q. What happened then? A I opened my door just enough for the light to come on; and before I knew it, he was at my car. Like two seconds he was there, and I wasn't scared. I was just sitting there. I thought maybe he was asking if I was okay, and he ripped open my door and cut my left side of my neck. And I bring my hand up, and it was just warm blood everywhere. Q. Did you see what he cut you with? A No. At that point, I didn't. Q. What did you think when that happened? 3 CP-21-CRIMINAL 192 - 2004 A I started freaking out. I started screaming, I love you. I was coming to see you. I'm sorry. I started apologizing for everything. Q. Were you really going to see him? A No. Q. Why were you saying that? A To save my life. Q. What happened then after your neck was cut? A I brought my feet up, and I kicked him in his chest. And I just felt jolts in my body. I don't remember my hand being cut. I don't remember my hand being cut. I don't remember my other side of my neck being cut. In the meantime, his -- I saw him cut his right side of his neck and stab his - I guess his stomach area. And- Q. Did he - did he say anything while this was going on either while he was attacking you or while he was cutting himself? A I don't remember. Q. Did it happen pretty fast? A Yeah. Q. All right. What happened then? A Before I knew it, I was laying across my two bucket seats in my car. I was laying across them. And my head was jammed up against the passenger side of the door; and I remember him - the last stab was on my chest. And he was cutting his right wrist with his left hand because he had propped his right hand up on my seat and used the knife and cut his wrist.. 4 CP-21-CRIMINAL 192 - 2004 Q. Did he say anything then? A Not at that point. Q. What point - what happened then? A We were - after he was lying on me, he's like, I love you. And I said, I love you too. And he's like, We're going to be together forever. And at that point, I started to be not able to breathe. Q. What did you think? Do you remember what was going through your mind at that point? A I thought I was gonna die. 13 We are satisfied that the attack on the victim in this case, while exceedingly genital and intense, involved, only one criminal episode. We are further satisfied the convictions of aggravated assault and attempted murder are both based upon the same facts, i.e. the defendants attempt to stab his wife to death. Therefore, the conviction of aggravated assault merges into the conviction of attempted murder for purposes of sentence. The commonwealth contends that the defendant cut the victims neck, and then cut his own neck before resuming the attack on the victim. However, the record does not support this scenano. As the victim candidly admitted: A I don't remember exact order of everything. I know I saw him cut his right side of his neck and his stomach. Q. Let's talk about that, and let's be very specific. When did that happen? 13 See Notes of Testimony, pp. 88-90. 5 CP-21-CRIMINAL 192 - 2004 A. I don't remember the order, but I remember sitting in my car. And I was kind of facing towards, you know, outside; and he was standing there. And he went like this (indicating). 14 ORDER OF COURT AND NOW, this day of JANUARY, 2005, for the reasons set forth in the attached opinion Defendant's Post Sentence Motion is GRANTED insofar as our sentencing order of October 5, 2004 is amended to provide as follows: "Counts 2 and 3 merge into Count 1 and, therefore, no sentence will be imposed thereon. Sentence of the Court at Count 4, recklessly endangering, is that the Defendant pay the costs of prosecution and undergo imprisonment in a State Correctional Institution for not less than 1 nor more than 2 years. Said sentence to run consecutive to the sentence imposed at Count 1. Sentence of the Court at Count 5 is that the Defendant pay the costs of prosecution, undergo imprisonment in a State Correctional Institution for not less than 1 nor more than 2 years. Said sentence to run concurrent with the sentence imposed at Count 4." In all other respects our sentencing Order of October 5, 2004, as modified by the Order of October 12, 2004, shall remain in full force and effect. 14 See Notes of Testimony, pp. 110-111. 6