Commonwealth v. Belsar

676 A.2d 632, 544 Pa. 346, 1996 Pa. LEXIS 1028
CourtSupreme Court of Pennsylvania
DecidedMay 21, 1996
StatusPublished
Cited by45 cases

This text of 676 A.2d 632 (Commonwealth v. Belsar) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Belsar, 676 A.2d 632, 544 Pa. 346, 1996 Pa. LEXIS 1028 (Pa. 1996).

Opinions

[348]*348 OPINION OF THE COURT

FLAHERTY, Justice.

On the evening of October 8, 1992, Clarence Belsar purchased a .22 caliber semi-automatic rifle. At about 12:30 a.m. that evening, Belsar called the victim, James Bohatch, and asked him to meet Belsar at a parking lot. He claimed that he had a fight with his wife and needed a ride to a girlfriend's house. When Bohatch arrived at the parking lot about 1:30 a.m. on October 9, Belsar told Bohatch he would have to retrieve his clothes from behind a fence. Belsar went behind the fence and instead retrieved the rifle he had earlier purchased. He then shot Bohatch at least five times, hitting him in the chest, pectoral area, stomach, upper arm and finger. The victim was seriously injured.

Bohatch testified that after he was shot, he fell to the ground and pretended to be dead. He then heard Belsar, who was joined by a confederate, say: “Ronnie, we got to find his car keys. If we don’t find his car keys we are dead men” and “Ronnie, get his wallet.” As the two assailants were looking for the car keys, Bohatch testified:

A. They—Belsar and the person he was with went around back of the fence looking for those car keys. When I knew they were back there I started to crawl through the parking lot. I crawled about ten feet. There was a couple of cars that came up Dixon. I don’t know if I was blocked by my car or what. I didn’t want to yell and so I tried to wave them down—nobody stopped. I crawled towards Dixon and towards the front of the Dairy Mart when I heard Belsar say, “he is not dead yet,” and I struggled to try to get up on my feet.
Q. What happened at that point?
A. I struggled to get up. They began kicking me. Q. Who began kicking at you?
A. Both Belsar and Ron.
Q. Kicking you where?
[349]*349A. Just kicking at me. I straggled to grab ahold of Belsar. I got ahold of the flannel shirt that he had on. Belsar told Ronnie, “help me with him—help me with him” and the juvenile just took off.
Q. Did you see him take off?
A. Yeh; I seen him leave. I had Belsar by the collar of his shirt. I don’t know what I said or what I muttered. I ripped the shirt off of him and he left.
Q. What did you do then?
A. I again went back down to the ground. I held my heart. I was bleeding profusely. I knew that I was hit there the worst. I had volunteered in an ambulance service for eight years. I was familiar with my injuries and how serious they were. I tried to control my breathing which was very difficult because I couldn’t get any air. I tried to keep myself calm and I began yelling for help.

N.T. 19-21.

A jury convicted Belsar of aggravated assault as a felony of the first degree (inflicting serious bodily injury) and as a felony of the second degree (inflicting bodily injury with a deadly weapon); attempted murder; robbery; and criminal conspiracy. He was sentenced to ten to twenty years for aggravated assault as a first degree felony; a consecutive term of five to ten years for attempted murder; and five to ten years for robbery, consecutive to the aggravated assault but concurrent with the sentence for attempted murder. No sentence was imposed for aggravated assault as a second degree felony or for criminal conspiracy.

Belsar appealed to Superior Court, which affirmed the judgment of sentence. We granted allocatur to address Belsar’s claim that he was sentenced in violation of our opinion in Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994).

[350]*350In Anderson we attempted to clarify our earlier cases Commonwealth v. Williams, 521 Pa. 556, 559 A.2d 25 (1989) and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989) as follows:

[W]e reaffirm our holding in Williams and abrogate the holding in Weakland. 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---In other words, it does not matter for purposes of merger whether one regards Weakland’s striking the customer and kidnapping him as one encounter or as two encounters, for the same facts, i.e., striking the victim with a gun, may be used to satisfy the force requirements of at least two crimes, kidnapping and aggravated assault, and the sentences for each crime will not merge because these crimes are not greater and lesser included offenses.

Anderson, 538 Pa. at 579, 650 A.2d at 22. Applying this analysis to the facts of Anderson, we concluded that aggravated assault merges into attempted murder for purposes of sentencing. Thus, the rule which emerged from Anderson was that a single criminal act would supply the necessary elements for as many crimes as were applicable to that act, with the proviso that for sentencing purposes, the greater and lesser included offenses would merge, and that aggravated assault merges into attempted murder for sentencing purposes.

The present case is not analogous to Anderson, although Belsar seeks to make it so. In Anderson a single criminal act—shooting—produced the injury to the victim and the crimes applicable to that single act merged because they were greater and lesser included offenses; in the present case, although the shooting was an aggravated assault, an additional aggravated assault was committed. The additional assault was the kicking of a seriously injured man.

We addressed this type of situation in Weakland. Although we abrogated Weakland’s holding with respect to the sentencing effect of committing a single criminal act, we did not [351]*351abrogate Weakland’s treatment of multiple criminal acts, which remains the law of Pennsylvania. In Weakland we stated:

If ... 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.

521 Pa. at 364, 555 A.2d at 1233.

Thus, on the facts of this case, merger does not apply, for the kicking attack was a separate incident that exceeded that which was necessary to accomplish the attempted murder. If the sentence for the kicking-aggravated assault were to merge with the sentence for attempted murder, the merger would implicate the “volume discount” on crime which we discussed in Anderson:

Our concern, as we pointed out in Weakland, is to avoid giving criminals a “volume discount” on crime.

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Bluebook (online)
676 A.2d 632, 544 Pa. 346, 1996 Pa. LEXIS 1028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-belsar-pa-1996.