Com. v. Johnston, C., Jr.

Superior Court of Pennsylvania·Decided November 12, 2019·No. 1893 MDA 2018·Unpublished

Opinion

J-S25011-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

CARL E. JOHNSTON, JR.

Appellant No. 1893 MDA 2018

Appeal from the Judgment of Sentence Entered January 8, 2018 In the Court of Common Pleas of Bradford County Criminal Division at No: CP-08-CR-0000315-2015

BEFORE: STABILE, MURRAY, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED NOVEMBER 12, 2019

Appellant, Carl E. Johnston, Jr., appeals from the judgment of sentence

imposing an aggregate 72 to 181 months of incarceration for operating a

methamphetamine laboratory, possession of liquefied ammonia gas,

possession of a prohibited offensive weapon, and use or possession of an

electronic incapacitation device.1 We affirm.

Appellant pled guilty to the aforementioned offenses on January 19,

2016, and on May 17, 2016, the trial court sentenced him to 24 months of

state intermediate punishment (“SIP”). On October 2, 2017, the

Commonwealth charged Appellant with numerous assault and drug offenses.2

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1 35 P.S. §§ 780-113.1 and 113.4; 18 Pa.C.S.A. §§ 908 and 908.1.

2 The appeal from the resulting convictions is before this Court at docket number 1651 MDA 2018. J-S25011-19

As a result, the trial court, at the conclusion of a January 8, 2018 hearing,

revoked Appellant’s SIP sentence and imposed sentence as set forth above.

This timely appeal followed.

Appellant argues that his sentence is illegal because his convictions at

§§ 908 and 908.1 of the Crimes Code merge for sentencing purposes. He also

argues that the trial court lacked jurisdiction to revoke his SIP sentence on

January 8, 2018 because, as of that date, the court had yet to receive a letter

from the Pennsylvania Department of Corrections (“DOC”) confirming

Appellant’s expulsion from the SIP program. We will consider these

arguments in turn.

The Pennsylvania Judicial Code governs our merger analysis:

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.

42 Pa.C.S.A. § 9765. Merger implicates the legality of a sentence.

Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013).

Accordingly, our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012),

appeal denied, 67 A.3d 793 (Pa. 2013). Section 9765 “prohibits merger

unless two distinct facts are present: 1) the crimes arise from a single criminal

act; and 2) all of the statutory elements of one of the offenses are included in

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the statutory elements of the other.” Tanner, 61 A.3d at 1046 (quoting

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009)).

Appellant’s brief fails to explain the criminal act from which his

conviction arose, in violation of Pa.R.A.P. 2119(c) (“If reference is made to

the pleadings, evidence, charge, opinion or order, or any other matter

appearing in the record, the argument must set forth, in immediate connection

therewith, or in a footnote thereto, a reference to the place in the record where

the matter referred to appears[.]”). Regardless, a review of the record reveals

that Appellant’s convictions under §§ 908 and 908.1 arose from the

possession of a device that appeared to be a flashlight but operated as a “stun

gun.” N.T. Suppression, 7/8/15, at 10. It was operational, it is a prohibited

offensive weapon in Pennsylvania, and Appellant was forbidden to possess any

variety of electronic incapacitation device because of prior convictions. Id. at

11. Thus, the record demonstrates that Appellant’s convictions under §§ 908

and 908.1 arose from a single criminal act.

Next, we consider the statutory elements of each offense. Section 908,

titled “Prohibited offensive weapons,” renders unlawful the mere possession

of 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).

Section 908.1, titled “Use or possession of electric or electronic

incapacitation device,” prohibits the use of an electronic incapacitation device

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for an unlawful purpose and/or the possession of such a device with the intent

to use it for an unlawful purpose. 18 Pa.C.S.A. § 908.1(a). Section 908.1(d)

provides the operative definition:

As used in this section, the term “electric or electronic incapacitation device” means a portable device which is designed or intended by the manufacturer to be used, offensively or defensively, to temporarily immobilize or incapacitate persons by means of electric pulse or current, including devices operating by means of carbon dioxide propellant. The term does not include cattle prods, electric fences or other electric devices when used in agricultural, animal husbandry or food production activities.

18 Pa.C.S.A. § 908.1(f) (emphasis added). Section 908.1(c) provides that

persons prohibited from firearm possession under 18 Pa.C.S.A. § 6105 are

also prohibited from possession of an electronic incapacitation device. 18

Pa.C.S.A. § 908.1(c). Appellant pled guilty to a violation of § 908.1(c) in this

case, based on his prior criminal record.

We conclude that Appellant’s merger argument fails because each

statute contains an element the other does not. To obtain a conviction under

§ 908, the Commonwealth needed to prove that Appellant was in possession

of a stun gun, electronic weapon, or other implement for the infliction of

serious bodily injury which serves no common lawful purpose. 18 Pa.C.S.A.

§ 908(c). This definitional element is not present in § 908.1, inasmuch as the

two statutes contain distinct definitions of the devices they govern. Section

908 prohibits mere possession of defined offensive weapons, whereas § 908.1

governs defined devices whose possession and use is lawful in some

circumstances. Thus, to convict Appellant under § 908.1(c), the

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Commonwealth needed to prove he possessed a defined device while he was

prohibited from firearm possession under § 6105. The definitional element of

subsection (f) and the prohibition under subsection (c) under § 908.1 are

absent from § 908. Appellant’s convictions therefore do not merge for

sentencing purposes.

Appellant, in a short three-paragraph argument, claims that § 908 is a

lesser-included offense of § 908.1 in this case because the operative element

of § 908—possession of a stun gun—is subsumed with his conviction under

§ 908.1—possession of a stun gun by a prohibited person. Appellant’s Brief

at 8. This argument simply ignores the distinct definitions of the devices

governed by §§ 908 and 908.1. Furthermore, in pleading guilty to both

offenses, Appellant admitted that his device met the definition of an electronic

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