HUDOCK, Judge.
This is an appeal from the judgment of sentence imposed upon Anderson after a jury convicted him of attempted murder,1 aggravated assault2 and possession of an instrument of crime.3 Timely filed post-verdict motions were denied by the trial court and Anderson was sentenced to serve consecutive terms of imprisonment of not less than four nor more than eight years for attempted murder, not less than six nor more than twelve years for aggravated assault, and not less than one nor more than two years for possession of an instrument of crime. A direct appeal to this Court followed. We affirm.
[208] When defense counsel failed to file an appellate brief, Anderson’s direct appeal to the Superior Court was dismissed. Pursuant to his petition for post conviction relief, however, the Superior Court granted Anderson the right to file a direct appeal nunc pro tunc, limited to the issues previously raised in post-trial motions. Before a three-member panel of this Court, Anderson charged the trial court with three errors: (1) refusing to permit Anderson to conduct a demonstration before the jury regarding the manner in which he usually held a shotgun; (2) refusing to grant a new trial because of adverse mid-trial publicity; and (3) failing to merge his convictions for aggravated assault and criminal attempt murder for sentencing purposes.
The panel found no error on the trial court’s part regarding Anderson’s first and second challenges. On the issue of merger, however, the panel held that aggravated assault is a lesser included offense of attempted murder and therefore the convictions merged for sentencing.4 Pursuant to the panel’s decision, the judgment of sentence was vacated and the case was remanded for resentencing. The Commonwealth’s Petition for Reargument En Banc was granted because of the conflict the Anderson panel’s decision created with another Superior Court panel decision, Commonwealth v. Fuller, 396 Pa.Super. 605, 579 A.2d 879 (1990).
The same three issues presented to the panel are before this Court sitting en banc. The facts as summarized by the trial court are as follows:
[209] The incident in question occurred in the early evening of October 31, 1987 at the home the defendant shared with the victim, Norma DeBooth, and her nine year old son. Ms. DeBooth was standing at the kitchen sink preparing dinner when she was shot in the back of the neck by the defendant. Wile [sic] the defendant alleges that he was merely cleaning the gun when it went off, Ms. DeBooth, now paralyzed, testified in open court that the defendant in fact told her he was going to shoot her immediately before she was actually shot.
Trial Court Opinion at p. 1-2.
During direct examination at trial, defense counsel asked Anderson, “Now, how do you normally hold your rifle when you aim it at something?” The prosecutor objected to this question and the trial court sustained the objection. Defense counsel made no offer of proof in response and the issue was not pursued. Post-trial, Anderson revisited the issue, asserting that the trial court’s ruling prevented him from establishing for the jury that the shooting had been accidental. Anderson claims the demonstration would have bolstered his version that the shooting occurred while he was seated at the kitchen table cleaning his shotgun, and that it would have cast doubt on the victim’s testimony that Anderson shot her while standing upright.
We find no merit in this argument. In this Commonwealth, “wide discretion is vested in the trial judge in permitting demonstrations or experiments to be made in the presence of the jury.” Commonwealth v. Thomas, 394 Pa.Super. 316, 323, 575 A.2d 921, 924 (1990) (quoting Commonwealth v. Soli, 273 Pa.Super. 158, 165, 417 A.2d 216, 219 (1979)). The trial court reasoned, “The proper issue for discussion is not how the defendant normally holds the gun but how he held the gun on that particular occasion.” Trial Court Opinion at p. 4. Anderson was permitted to fully explain his version of the shooting as an accident. Any self-serving demonstration regarding how Anderson normally holds a gun would have been irrelevant to how the shooting at hand occurred. Because the admission of evi[210] dence, with respect to relevance, rests largely within the discretion of the trial court, and the requested demonstration would have shed no light on the manner of this shooting, we find no abuse in the trial court’s ruling.
Anderson’s second challenge, that the trial court erred in denying his new trial motion on grounds of mid-trial publicity, is also without merit. During the trial, two articles involving this case appeared in the Reading paper. Neither was on the front page nor highlighted in any other manner. We find The Honorable Calvin E. Smith correctly addressed this issue in his opinion of January 27, 1989, and, on the basis of that opinion, we affirm.
The issue which brings the matter to the court en banc is the third and most troublesome issue Anderson raises: Whether crimes of attempted murder and aggravated assault merge for sentencing purposes. We note initially that, although Anderson did not raise his third issue at the trial court level, the issue of merger implicates the legality of sentencing, and, therefore, may not be waived. See Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986), alloc. denied, 517 Pa. 602, 536 A.2d 1327 (1987); Commonwealth v. Blassingale, 391 Pa.Super. 395, 571 A.2d 426, alloc. denied, 526 Pa. 627, 584 A.2d 311 (1990). We hold that, under the current merger test and the particular facts of this case, the crime of aggravated assault is not a lesser included offense of attempted murder and, therefore, the two crimes do not merge for sentencing purposes.
The common law doctrine of merger in Pennsylvania was significantly altered by the Supreme Court in its recent decisions of Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989) and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989). In Leon Williams, the Supreme Court granted an allowance of appeal to decide the question of whether convictions merge for sentencing purposes when they arise from the same criminal act. Leon Williams pleaded guilty to aggravated assault, criminal [211] attempt at robbery, and unlawful restraint as a result of charges which arose from a May 30, 1986, incident where Williams attacked a sixty-one-year-old woman. Attempting to rob the woman, Williams grabbed her from behind, choked her and threw her to the ground. Hearing the victim’s screams, neighbors came to her aid and Williams ran from the scene before he was able to complete the robbery. Subsequently, Williams was apprehended and positively identified by the victim. As a result of the attack, the victim suffered a broken nose, fractured skull and foot, black eyes, cuts, bruises, abrasions, and psychological trauma.
Williams was sentenced to five to ten years for aggravated assault, a consecutive term of one and one-half to ten years for attempted robbery, and a consecutive term of one and one-half to five years for unlawful restraint; Williams’ aggregate sentence thus was eight to twenty-five years. His motion for reconsideration was denied and Williams appealed to this Court. A panel of this Court partially vacated the judgment of sentence and remanded for resentencing. The panel majority’s basis for its disposition was that the unlawful restraint conviction merged with the aggravated assault and the attempted robbery convictions for sentencing purposes. Commonwealth v. Leon Williams, 368 Pa.Super. 315, 534 A.2d 101 (1987). The panel grounded this result on their belief that the unlawful restraint of the victim was coextensive with the restraint occasioned by the aggravated assault and attempted robbery of the victim. In other words, the panel majority found that the aggravated assault and attempted robbery “ ‘necessarily included’ the unlawful restraint involved such that proof of both the aggravated assault and the criminal attempt robbery required proof of the acts upon which the unlawful restraint conviction is predicated.” Leon Williams, 368 Pa.Superior Ct. at 323, 534 A.2d at 104-05.
The panel majority rejected the Commonwealth’s contention that a separate and distinct interest of the Commonwealth is vindicated by the unlawful restraint conviction. The panel majority, however, also rejected Williams’ claim [212] that aggravated assault and attempted robbery merged for sentencing purposes, finding that each conviction vindicated a different interest of the Commonwealth.5
When the case reached the Supreme Court, that Court began its analysis by explaining the merger test it had previously announced in Michael Williams. The Court reiterated the first prong of that test as follows:
Crimes “necessarily involve” each other, therefore, if one of two possible scenarios occurs: (1) the crimes have the same elements (i.e., lesser included offenses), or (2) the facts of the case are such that although the elements of the crimes differ, the facts which establish one criminal charge also serve as the basis for an additional criminal charge. An example of this is the case at bar, where the facts of throwing the victim down and beating her simultaneously establish the factual basis for the crimes of aggravated assault and unlawful restraint.
Leon Williams, 521 Pa. at 561, 559 A.2d at 27-28 (footnotes omitted). The Supreme Court then defined a lesser included offense as “a crime the elements of which are a necessary subcomponent but not a sufficient component of elements of another crime, the greater included offense.” Id., 521 Pa. at 561, 559 A.2d at 28 n. 2.
The Supreme Court continued with a description of the second prong of the Michael Williams merger test as follows:
[213] If it is determined that the elements of the crimes charged are the same, or that the same operative facts underlie the crimes charged, the court must then, under the analysis set out in Michael Williams, determine whether the Commonwealth has substantially different interests in prosecuting the defendant for two or more separate crimes. What the court is really asked to do at the second stage of the analysis is make two determinations: (1) what interests of the Commonwealth are at stake in the offenses charged; and (2) how the facts of the case bear on the Commonwealth’s interests. ******
In other words, at step two a court has to determine exactly how the Commonwealth has been injured (how many “evils" are present) based on the court’s understanding of the Commonwealth’s interests and the facts of the case.
Id. at 28 (emphasis in original).
While recognizing that it had only recently promulgated this analysis for merger, the Supreme Court in Leon Williams concluded the analysis was flawed and must be abandoned. The majority reached this conclusion on two bases: (1) the interests of the Commonwealth in the enactment of any given criminal statute are difficult to define with any precise degree of certainty; and (2) the merger test of Michael Williams offers no guidance in establishing how many offenses against the Commonwealth had been committed.
In view of these shortcomings, the majority in Leon Williams held that, except for lesser included offenses, the doctrine of merger based on whether the Commonwealth has an interest in prosecuting a criminal defendant for more than one crime was abolished and abrogated. The majority therefore concluded that the crimes of aggravated assault and unlawful restraint do not merge because one of the crimes is not a lesser included offense of the other; apart from the rejected argument that the convictions serve the same interest of the Commonwealth, there exists no argu[214] ment in favor of merger. The high court in Leon Williams did not address that part of the first prong of the Michael Williams test which leads to a finding of merger if the crimes necessarily involved each other. Because the Leon Williams Court clearly held that only lesser included offenses would merge, we can only conclude that the “same operative facts” part of the merger test, i.e., although the elements differ the crimes merge if the same factual basis supports the conviction (fact-based merger), has likewise been abandoned.
In Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989), Weakland pleaded guilty or nolo contendere to various crimes arising from the murder of Cecil Rash and the robbery of a gas station owned by the decedent and his wife. Weakland pleaded guilty to two counts of robbery and one count of criminal conspiracy, entered a plea of nolo contendere to one count of kidnapping, four counts of aggravated assault, one count of theft, and a general charge of homicide. Following denial of post-trial motions, Weakland was sentenced to life imprisonment on the murder conviction — at a degree of guilt hearing, a three-judge panel determined that Weakland was guilty of first degree murder — and fifty-three and one-half to one hundred seven years on the remaining charges, to run consecutively to the life sentence.
The Pennsylvania Supreme Court granted the Commonwealth’s petition for allocatur in order to consider whether this Court properly treated the merger questions raised by Weakland’s convictions. The merger questions involved the merger of two of the four assault charges, one into another assault charge and the other into a kidnapping charge. The Supreme Court analyzed the facts of the robbery and murder.
The first merger question dealt with two assaults inflicted upon Mrs. Rash — when Weakland’s brother knocked her down and ripped a telephone off the wall and then again when Weakland shot her. The Supreme Court held that these two assaults constituted separate acts sufficiently [215] supported by different facts; therefore, this Court erred in merging the two convictions.6
The second merger question in Weakland was whether this Court erred in merging the charge of aggravated assault upon Mr. Wilson, a customer of the gas station who was forced to drive Weakland away from the scene, with the charge of kidnapping Mr. Wilson. While this Court found that two distinct assaults were perpetrated upon Mr. Wilson, we held that the second assault, i.e., shoving a gun into Mr. Wilson’s face in order to commandeer his car, merged with the kidnapping conviction for sentencing purposes. According to this Court, the second assault was the same act upon which the Commonwealth relied to prove the force necessary to establish the elements of the charge of kidnapping. Based on these conclusions, this Court held that, because the assault and kidnapping charges were, in effect, one crime, they merged for sentencing purposes.
Before the Pennsylvania Supreme Court, the Commonwealth argued there existed evidence of Mr. Wilson being held at gunpoint, in addition to Weakland’s act of shoving a gun in Wilson’s face, to support the force element of a kidnapping charge. While recognizing its decision in Leon Williams, the Supreme Court opined the merger doctrine would be abused if it were used “to give the criminal ‘rights’ to unlimited violence in perpetrating any of the crimes requiring violence or a threat of violence as an element.” Weakland, 521 Pa. 362, 555 A.2d at 1232. Thus, the Supreme Court stated:
We agree with Superior Court [in our discussion in Commonwealth v. Leon Williams ] that when multiple acts of violence accompany another crime which requires violence [216] or threat of violence as an element, convictions of multiple violent acts should not merge for sentencing purposes beyond that which is necessary to supply the element of violence or threat for the additional crime.
Id. at 1233. The high court went on to differentiate its Weakland holding from the holding announced in the companion case, Leon Williams:
In this case, as in the companion case of Commonwealth v. Leon Williams, [521 Pa. 556, 559 A.2d 25 (1989)] also decided this day, it has been our goal to simplify and explain the doctrine of merger as it relates to the facts presented. In Leon Williams we held that where the same facts are used to support convictions for crimes having different elements, the crimes do not merge for sentencing purposes, unless the same facts support convictions of lesser included offenses. That holding does not apply to the present case because the problem here is not whether the same facts support multiple convictions, but whether facts in evidence additional to those facts establishing aggravated assault, i.e., that [Weakland] continued to threaten Mr. Wilson with a handgun, should have been used to satisfy the threat or force element of kidnapping. It is our view that the additional facts should be used to satisfy the force or threat element of kidnapping, for otherwise, a violent criminal would be permitted to perpetrate multiple crimes while suffering only partial liability for the harm he has wrought.
Id. The majority in Weakland concluded with a summary of the present merger test:
For the foregoing reasons, we hold that if a person commits one act of criminal violence, and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime. If, however, the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime, then the actor will be guilty of multiple crimes which do not merge for sentencing purposes.
[217] Id.7 The Supreme Court then stated that, under the facts presented, the merger of the aggravated assault charge with the kidnapping charge was inappropriate because the act of holding Mr. Wilson at gunpoint v/as separate and apart from the aggravated assault and was sufficient to supply the element of threat necessary for the kidnapping conviction.
This Court has succinctly described the holdings of Leon Williams and Weakland as follows:
In order for offenses to merge, one offense must be a “lesser included offense” of the other, i.e. the elements of the lesser offense must be identical to and capable of being wholly subsumed within the elements of the greater offense [See Leon Williams, 559 A.2d at 28 n. 2], and the factual predicate for the lesser included offense must also be part of the factual predicate required to establish the greater offense. [See Weakland. ]
Commonwealth v. Yates, 386 Pa.Super. 282, 287, 562 A.2d 908, 911 (1989) (emphasis in original). See also, Commonwealth v. Burkhardt, 526 Pa. 341, 349, 586 A.2d 375, 379 (1991) (concurring opinion by Flaherty, J.) (Leon Williams requires merger only where elements of one crime are subsumed into the elements of another crime).8
[218] Thus, the “lesser included offense” test of merger must be applied to the crimes of attempted murder and aggravated assault. The relevant statutory provisions of these two crimes are as follows: Section 2702(a)(1) defines aggravated assault as the attempt to cause “serious bodily injury to another, or causing such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]” 18 Pa.C.S. § 2702(a)(1) (Purdon 1983 & Supp.1991). Criminal attempt to commit murder is defined by reading the attempt statute and the homicide statute together; a person commits criminal attempt to commit murder when, with malice and specific intent to cause the death of another person, he does any act which constitutes a substantial step toward the commission of that death. 18 Pa.C.S. § 901(a) and § 2501(a) (Purdon 1983).
A recent panel of this Court has discussed the potential for merger of the two crimes at issue herein, under the current merger test of Leon Williams, in Commonwealth v. Fuller, 396 Pa.Super. 605, 579 A.2d 879 (1990), alloc. denied, 527 Pa. 585, 588 A.2d 508 (1991). Puller was solicited by another man to “rough up” the victim for the sum of $500.00. Fuller agreed. Then a man named Beavers offered to perform the task for Fuller. Fuller drove Beavers to the victim’s house. Beavers entered the victim’s home and shot him. Upon hearing the shots, Fuller immediately departed, leaving Beavers at the scene. As a result, of the shooting, the victim was hospitalized for one month, lost thirteen pints of blood, and partially lost the use of his right hand.
Fuller was originally charged with the three inchoate crimes of attempt to commit criminal homicide, conspiracy to commit criminal homicide, and solicitation to commit criminal homicide. Immediately prior to trial, however, the [219] Commonwealth sought to amend the indictment and information to include an aggravated assault charge. This motion was granted by the trial court. Following the close of the Commonwealth’s case, the trial court granted Fuller’s demurrers to the attempted criminal homicide and some of the related inchoate offenses. Fuller was convicted and sentenced on the remaining charges. Fuller then filed a direct appeal to this Court.
Among the issues raised in Fuller was whether the trial court committed prejudicial error in allowing the amendment of the information to include aggravated assault. In response, the Commonwealth alleged that aggravated assault is a lesser included offense of attempted murder and, therefore, merger was proper. While the Fuller panel nevertheless held the amendment proper because 1) the crimes arose out of the same set of facts and 2) Fuller was placed on notice of his criminal conduct, the panel stated its disagreement with the claimed merger of the two crimes. In reaching its conclusion, the panel first noted the definition of a lesser included offense:
To quote from \Leon ] Williams, 521 Pa. at 561, 559 A.2d at 28 n. 2., “[a] lesser included offenses [sic] is a crime the elements of which are a necessary subcomponent but not a sufficient component of elements of another crime, the greater included offense.” In other words, it must be impossible to commit the greater offense without also committing the lesser included offense. Instantly, it is obvious when the elements of criminal attempt murder and aggravated assault are compared that a criminal attempt murder can occur without a constituent aggravated assault.
Fuller, 396 Pa.Superior Ct. at 614, 579 A.2d at 884. The Fuller panel then listed the elements of each crime as follows:
It is crucial to note that the word “attempt” as used in the aggravated assault statute does not carry the same meaning as the more general usage of “attempt” in defining the inchoate crime. With respect to aggravated assault, an “attempt” requires more than a mere “substantial step” towards commission, rather it requires at [220] least a simple assault. See Commonwealth v. Russell, 313 Pa.Super. 534, 538-42, 460 A.2d 316, 319-320 (1983), quoting Commonwealth v. Alexander, 477 Pa. 190, 193-94, 383 A.2d 887, 889 (1978). After analyzing the elements of criminal attempt murder and aggravated assault, it is obvious aggravated assault is not a lesser included offense since every element of aggravated assault is not necessarily included in criminal attempt of murder.
Fuller, 396 Pa.Superior Ct. at 614-615, 579 A.2d at 884. The panel next provided an example of where merger would not be appropriate:
For example, hiring a contract killer to assassinate one’s enemy constitutes a “substantial step” towards commission of a murder and could result in a conviction for criminal attempt murder. However, the same act is clearly insufficient to support an aggravated assault conviction. Without a doubt, certain factual scenarios can result in a conviction for both criminal attempt murder and aggravated assault, but that does not require the offenses to have a lesser included/greater offense relationship. See [Leon] Williams, 521 Pa. at 563, 559 A.2d at 29 (unlawful restraint arising from same incident as an aggravated assault is not a lesser included offense and does not merge).
Fuller, 396 Pa.Superior Ct. at 615, 579 A.2d at 884. The Fuller panel concluded its analysis of the merger question by stating that if aggravated assault, a first degree felony, would merge with criminal attempt murder, a second degree felony, the result would be a sentence imposed on the greater offense which happens to carry a lesser penalty. The Fuller panel suggested this type of sentencing would be inconsistent with well-established precedent. See Commonwealth v. Sayko, 333 Pa.Super. 265, 482 A.2d 559 (1984) (when crimes merge for sentencing purposes, the one for which a defendant may be sentenced is the one to which the legislature has attached the greater penalty); Commonwealth v. O’Brien, 356 Pa.Super. 294, 514 A.2d 618 (1986), alloc. denied, 515 Pa. 576, 527 A.2d 537 (1987) (same).
[221] In the present case, a single act, i.e., the gunshot to the victim’s neck, supports Anderson’s convictions for both aggravated assault and attempted murder. Thus, the crimes will merge for sentencing purposes only if the one crime is a lesser included offense of the other. Weakland, 521 Pa. at 363, 555 A.2d at 1233. For the reasons that follow, we find that aggravated assault is not a lesser included offense of attempted murder.
Fuller held that aggravated assault is not a lesser included offense of attempted murder — and therefore merger did not apply — because the “attempt” conduct required for each of the two offenses differs. We also conclude that aggravated assault is not a lesser included offense of attempted murder, but for reasons different from those offered by the Fuller panel. Contrary to the Fuller panel’s position, case law established by this Court holds that a significant step toward the perpetration of the crime satisfies the attempt element of aggravated assault. Commonwealth v. Carter, 329 Pa.Super. 490, 478 A.2d 1286 (1984); Commonwealth v. Mayo, 272 Pa.Super. 115, 414 A.2d 696 (1979). Clearly, “attempted aggravated assault” and attempted murder share the same requirement of a substantial step toward the completed crime.
We believe that the Fuller panel did not address what we consider to be the truly distinguishing factor between the two crimes — the fact that attempted murder is always an inchoate crime and aggravated assault can be, and under the facts of this case is, a completed crime. For the reasons which follow, we find that, in this situation presented in the instant appeal, aggravated assault is not a lesser included offense of attempted murder.
A lesser included offense analysis is complicated in the present case by the fact that an aggravated assault can be committed in two ways, to-wit, attempt to cause or causes serious bodily injury. 18 Pa.C.S. § 2702(a). In short, the language of the aggravated assault section encompasses both an inchoate and completed crime. Thus, [222] when both attempted murder and aggravated assault are charged, two possible scenarios arise: attempted murder charged together with the attempt form of aggravated assault and attempted murder charged together with a completed aggravated assault. The present case falls under the latter situation.
Initially, we note that had Appellant successfully caused the death of the victim, established case law clearly holds that aggravated assault would merge with the murder. See, e.g., Commonwealth v. Musselman, 483 Pa. 245, 247 n. 1, 396 A-2d 625, 625-26 n. 1 (1979). In this situation, two completed or choate crimes were committed, one of which is a lesser included offense of the other. Clearly, the actual infliction of death includes the actual infliction of serious bodily injury.
When attempted murder is charged together with the attempt form of aggravated assault, it would appear that the two should merge because both crimes are inchoate and, as noted above, each requires a substantial step toward commission of the crime. However, we find that the mental state of the actor prevents merger. In Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983), Griffin was convicted of robbery, conspiracy, attempted murder, terroristic threats, and simple assault following a bank robbery. Among the issues raised on appeal to this Court was whether the trial court erred in instructing the jury that the Commonwealth need only prove an intention to commit murder of any degree in order to convict Griffin of attempted murder. Griffin requested a curative instruction to the effect that a specific intention to kill was necessary for a conviction of attempted murder. The Griffin panel agreed, reasoning as follows:
The question squarely presented to us is whether someone can attempt to commit murder of the second or third degree. We think not. A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. 18 Pa.C.S.A. § 901. Murder [223] of the second or third degree occurs where the killing of the victim is the unintentional result of a criminal act. Thus, an attempt to commit second or third degree murder would seem to require proof that a defendant intended to perpetrate an unintentional killing — which is logically impossible. While a person who only intends to commit a felony may be guilty of second degree murder if a killing results, and a person who only intends to inflict bodily harm may be guilty of third degree murder if a killing results; it does not follow that those persons would be guilty of attempted murder if a killing did not occur. They would not be guilty of attempted murder because they did not intend to commit murder — they only intended to commit a felony or to commit bodily harm.
Griffin, 310 Pa.Superior Ct. at 50-51, 456 A.2d at 177 (emphasis in original). The Griffin panel then cited to the Handbook on Criminal Law, by LaFave and Scott, wherein the editors explain why it is necessary to prove an intent to kill in order to sustain the charge of attempted murder:
Some crimes, such as murder, are defined in terms of acts causing a particular result plus some mental state which need not be an intent to bring about that result. Thus, if A, B, and C have each taken the life of another, A acting with intent to kill, B with an intent to do serious bodily injury, and C with a reckless disregard of human life, all three are guilty of murder because the crime of murder is defined in such a way that any one of these mental states will suffice. However, if the victims do not die from their injuries, then only A is guilty of attempted murder; on a charge of attempted murder it is not sufficient to show that the defendant intended to do serious bodily harm or that he acted in reckless disregard of human life. Again, this is because intent is needed for the crime of attempt, so that attempted murder requires an intent to bring about that result described by the crime of murder (i.e., the death of another).
Griffin, 310 Pa.Superior Ct. at 51, 456 A.2d at 177 (citing LaFave and Scott, Handbook on Criminal Law, § 59 at 428-29 (1972) (footnotes omitted)).
[224] From the discussion in Griffin, we conclude that the intent to kill necessary to sustain a conviction for attempted murder is separate and distinct from any other intent, and, therefore, cannot include any other type of intent. Attempted murder requires a specific intent to kill, an intent to cause a particular result. Attempted murder cannot also include, therefore, an unintended consequence, i.e., an intent to inflict serious bodily injury. As stated above, an actual killing includes the actual infliction of serious bodily injury. However, when dealing with the attempt to commit murder or the attempt to commit an aggravated assault, each crime is a “specific intent” crime because the result specifically intended is either a completed murder or a completed aggravated assault. Therefore, when considering the separate mental states needed to support a conviction for these two inchoate crimes, it becomes evident that the “specific intent” elements of attempted aggravated assault and attempted murder are different — -a specific intent to kill is not a specific intent to commit serious bodily injury. To conclude otherwise vitiates the concept of “a specific intent.” Thus, under the current merger test set forth in Leon Williams, attempted aggravated assault is not a lesser included offense of attempted murder because both crimes require a different specific intent to bring about a different specific result. An intent to inflict serious bodily injury is separate and distinct from an intent to kill and, therefore, cannot be wholly subsumed within the intent to kill element of attempted murder. Given the distinct mental state elements of these two crimes, aggravated assault is not a lesser included offense of attempted murder and merger of these two crimes is not appropriate.
The. dissent argues that such logic renders the intent necessary for attempted aggravated assault and attempted murder mutually exclusive. It then questions the legality of convicting Appellant of both crimes. The answer to such a contention is that under the facts of the instant [225] case, we are not presented with two inchoate crimes.9 There can be no doubt that Appellant caused serious bodily injury to the victim. Thus, the present case involves the scenario wherein an inchoate and a choate crime are charged; Appellant completed the aggravated assault but not the murder. The actual infliction of serious bodily injury is not a necessary element of attempted murder, for attempted murder can be committed without inflicting the slightest degree of harm.
The above-mentioned scenario in Fuller provides an illustration of this point. Additionally, to illustrate, suppose a man lay in wait outside a window of his neighbor’s house. As the neighbor enters the room, the man raises a rifle, aims at the heart of the neighbor, and yells, “Die, neighbor!” At that precise moment, the police, having heard the man’s declaration, grab the rifle before he can fire the gun. The man has committed the crime of attempted murder without inflicting serious bodily injury.
In committing the substantial step necessary to support a conviction of attempted murder, Appellant completed the commission of a different crime that cannot, under the circumstances, be wholly subsumed within attempted murder. Thus, that completed crime, aggravated assault, is not a lesser included offense and does not merge for sentencing purposes.
An additional, independent basis for finding that the two crimes do not merge is the fact that a “lesser included offense” cannot be a higher-graded felony than the crime in which it is supposedly included. See Commonwealth v. Gouse, 287 Pa.Super. 120,127 n. 3, 429 A.2d 1129, 1132 n. 3 (1981) (lesser included offense must be less serious in terms of “classification and degree” than the greater offense). By definition, then, a first degree felony cannot merge into a second degree felony. Commonwealth [226] v. Adams, 350 Pa.Super. 506, 504 A.2d 1264 (1986) (en banc), alloc. denied, 515 Pa. 603, 529 A.2d 1078 (1987). Such a result is logical. As stated by the panel in Fuller:
Further, it is analytically consistent with the purposes of criminal jurisprudence to punish a criminal who completes an aggravated assault and causes serious bodily injury more severely than a criminal who merely takes a “substantial step” towards completion of a murder. See Solem v. Helm, 463 U.S. 277, 293, 103 S.Ct. 3001, 3011, 77 L.Ed.2d 637, 651, (1983) (“It is generally recognized that attempts are less serious than completed crimes.”); Mode [1] Penal Code § 5.05.
Commonwealth v. Fuller, 396 Pa.Superior Ct. at 615-616, 579 A.2d at 884-85.
Because aggravated assault is neither a lesser included offense of attempted murder nor a lesser degree felony, the trial court properly sentenced Anderson on both charges.10
Judgment of sentence is affirmed.
WIEAND, J., files a Dissenting Opinion in which McEWEN, DEL SOLE and BECK, JJ. join.