Commonwealth v. Greene

25 A.3d 359, 2011 Pa. Super. 148, 2011 Pa. Super. LEXIS 1746, 2011 WL 2891260
CourtSuperior Court of Pennsylvania
DecidedJuly 20, 2011
Docket538 MDA 2009
StatusPublished
Cited by15 cases

This text of 25 A.3d 359 (Commonwealth v. Greene) is published on Counsel Stack Legal Research, covering Superior 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. Greene, 25 A.3d 359, 2011 Pa. Super. 148, 2011 Pa. Super. LEXIS 1746, 2011 WL 2891260 (Pa. Ct. App. 2011).

Opinions

OPINION BY

BOWES, J.:

Michael Greene appeals from the judgment of sentence of life imprisonment imposed by the trial court pursuant to Pennsylvania’s recidivist statute, 42 Pa. C.S. § 9714, after his convictions of aggravated assault and simple assault. After careful review, we hold that the trial court erred in concluding that two prior Massachusetts convictions were substantially equivalent to this Commonwealth’s statutorily defined crimes of violence. Accordingly, we vacate Appellant’s judgment of sentence and remand for resentencing.

[360]*360The pertinent factual and procedural background of this case is as follows. A jury convicted Appellant of aggravated assault and simple assault after he brutally attacked his girlfriend. Thereafter, the trial court sentenced Appellant to life imprisonment under 42 Pa.C.S. § 9714 due to Appellant’s convictions in Massachusetts. Appellant appealed, and this Court remanded for resentencing because the record did not reflect which of Appellant’s thirty-three convictions in Massachusetts the trial court utilized as Appellant’s two prior crimes of violence. Appellant petitioned for allowance of appeal, which our Supreme Court denied.

Subsequently, the sentencing court conducted a hearing on the relevant issue and again sentenced Appellant to life imprisonment, concluding that a 1977 conviction for unarmed robbery and a 1985 conviction for simple assault with intent to commit robbery were substantially equivalent to Pennsylvania’s robbery crimes of violence. Appellant filed a timely post-sentence motion, which the court denied. This appeal ensued.

The sentencing court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement, but it did author an opinion in support of its sentencing order. A divided panel of this Court reversed the judgment of sentence and remanded for resentenc-ing. The Commonwealth requested and was granted en banc review. Appellant now raises three issues for our consideration.

1.Whether the sentencing court committed an error of law in finding that the Massachusetts statutes under M.G.L.A. 265 § 19 and M.G.L.A. [265] § 20 were substantially similar to subsection § 3701(a)(1)®, (ii), and (iii) Pennsylvania’s Robbery Statute thereby making the sentence issued under 42 Pa.C.S.A. § 9714 illegal[?]
2. Whether sentencing Appellant to life in prison without the [possibility of] parole was an illegal sentence and/or violated his Fifth, Sixth and Fourteenth Amendment Rights under the United States Constitution and Article I Section Six and Nine of the Pennsylvania Constitution because the decision was based upon a factual determination made by the trial court instead of a jury[?]
3. Whether the sentencing court committed an abuse of discretion in determining that twenty five years of total confinement was insufficient to protect the public safety since it only considered Appellant’s prior record and failed to consider other relevant and important factors such as age and his attempts at betterment[?]

Appellant’s brief at 3.

Appellant’s initial contention is that the sentencing court erred in concluding that the Massachusetts crimes of unarmed robbery and simple assault with intent to rob are substantially equivalent to Pennsylvania’s robbery crimes of violence. According to our three strikes recidivist statute, a court may sentence an individual to life imprisonment if he has previously been convicted of at least two crimes of violence arising from separate criminal transactions and the court determines that twenty-five years of total confinement is insufficient to protect the public. 42 Pa.C.S. § 9714(a)(2). Where the prior convictions arise from a crime committed outside of Pennsylvania, the convictions are considered a crime of violence if they are equivalent to one of the Pennsylvania statutorily-delineated crimes of violence. See 42 Pa. C.S. § 9714(g). Those crimes include:

murder of the third degree, voluntary manslaughter, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2) (relating to aggravated assault), rape, [361]*361involuntary deviate sexual intercourse, aggravated indecent assault, incest, sexual assault, arson as defined in 18 Pa. C.S. § 3301(a) (relating to arson and related offenses), kidnapping, burglary of a structure adapted for overnight accommodation in which at the time of the offense any person is present, robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii) or (iii) (relating to robbery), or robbery of a motor vehicle, or criminal attempt, criminal conspiracy or criminal solicitation to commit murder or any of the offenses listed above[.]

42 Pa.C.S. § 9714(g). Thus, the Pennsylvania recidivist statute is specifically targeted to encompass a narrow set of inherently dangerous criminal behaviors, and both directs and limits a sentencing court’s inquiry. See Commonwealth v. Northrip, 603 Pa. 544, 985 A.2d 734, 741 (2009). This Court, therefore, must focus on the elements of the crimes of which Appellant was convicted in Massachusetts and determine whether those crimes are substantially equivalent to a crime of violence in our recidivist statute.

“The issue before us is one of statutory construction that implicates the legality of the sentence imposed. As a result, our standard of review is de novo and the scope of our review is plenary.” Id. at 736. Further, we are required to strictly construe criminal statutes. 1 Pa. C.S. § 1928(b)(1); Commonwealth v. McClintic, 589 Pa. 465, 909 A.2d 1241 (2006). Any doubt as to a criminal statute’s meaning is to be resolved in favor of the defendant. Commonwealth v. Graham, 9 A.3d 196, 202 n. 13 (Pa.2010). In Northrip, our Supreme Court was faced with determining whether a New York arson statute was substantially equivalent to our arson statute. Therein, the Court stated:

In determining whether a foreign state’s statute is equivalent to a Pennsylvania crime under Section 9714, we hold that the sentencing court is to apply the test this Court articulated in Shaw. Thus, the court must consider “the elements of the foreign offense in terms of classification of the conduct proscribed, its definition of the offense, and the requirements for culpability.” [Commonwealth v.] Shaw, 744 A.2d at 743 (citation omitted). With respect to the underlying policy of the statutes, we hold that analysis of policy considerations is appropriate, though not controlling.

Id. As noted in Shaw, supra, and quoted with approval by the Northrip Court,

the court may want to discern whether the crime is malum in se or malum prohibitum, or whether the crime is inchoate or specific. If it is a specific crime, the court may look to the subject matter sought to be protected by the statute, e.g., protection of the person or protection of the property. It will also be necessary to examine the definition of the conduct or activity proscribed. In doing so, the court should identify the requisite elements of the crime — the ac-tus reus and mens rea — which form the basis of liability.

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Cite This Page — Counsel Stack

Bluebook (online)
25 A.3d 359, 2011 Pa. Super. 148, 2011 Pa. Super. LEXIS 1746, 2011 WL 2891260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-greene-pasuperct-2011.