J-S34037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRETT ALLEN WOODSIDE

Appellant No. 1322 MDA 2015

Appeal from the Judgment of Sentence July 10, 2015

In the Court of Common Pleas of Columbia County

Criminal Division at No(s): CP-19-CR-0000683-2013

BEFORE: PANELLA, J., STABILE, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED JUNE 21, 2016

Appellant Brett Allen Woodside appeals from the judgment of sentence 

entered in the Columbia County Court of Common Pleas on July 10, 2015 

following his jury trial conviction for voluntary manslaughter, aggravated 

assault (serious bodily injury), aggravated assault (with a deadly weapon), 

and tampering with evidence.1 We affirm.

On March 27, 2015, following a jury trial, Appellant was convicted of 

the aforementioned crimes in relation to the death of the victim, a friend of 

Appellant’s. The jury found Appellant not guilty of first-degree murder or 

third-degree murder. 

____________________________________________

1 18 Pa.C.S. §§ 2503, 2702(a)(1), 2702(a)(4), and 4910(1), respectively.
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On May 27, 2015, the trial court sentenced Appellant. It found the 

aggravated assault (serious bodily injury) count merged for sentencing 

purposes with the aggravated assault (with a deadly weapon) count. It 

sentenced Appellant to 60 to 120 months’ incarceration for the voluntary 

manslaughter conviction and a consecutive 60 to 120 months’ incarceration 

for the aggravated assault (serious bodily injury) conviction. The court also 

imposed a sentence of 12 months’ probation on the tampering with evidence 

conviction, to run concurrent with the voluntary manslaughter conviction.

On June 5, 2015, Appellant filed a post-sentence motion. On July 10, 

2015, the trial court vacated the sentence imposed on May 27, 2015, 

vacated the order effecting a merger of the aggravated assault convictions, 

and ordered that the aggravated assault (serious bodily injury) conviction 

would merge for purposes of sentencing with the voluntary manslaughter 

conviction, and that Appellant would be re-sentenced for voluntary 

manslaughter, aggravated assault (with a deadly weapon), and tampering 

with evidence.

On July 10, 2015, the trial court re-sentenced Appellant to 72 to 144 

months’ incarceration for the voluntary manslaughter conviction, 16 to 32 

months’ incarceration for the aggravated assault (with a deadly weapon) 

conviction, to be served consecutive to the voluntary manslaughter 

sentence, and 12 months’ probation for the tampering with evidence 

conviction, to be served concurrent with the voluntary manslaughter 

sentence.
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On August 3, 2015, Appellant filed a timely notice of appeal. Appellant 

filed a concise statement of errors complained of on appeal pursuant to 

Pennsylvania Rule of Appellate Procedure 1925(b) and the trial court issued 

a Rule 1925(a) opinion incorporating its opinion filed July 10, 2015 as its 

basis for the judgment of sentence.

Appellant raises the following issue on appeal:

Whether the trial court’s imposition of separate sentences 

for aggravated assault with a deadly weapon and 

[]voluntary manslaughter pursuant to 42 Pa.C.S. 9765 

violates the double jeopardy clause of Article 1 Section 10 

of the Pennsylvania Constitution under the facts and 

circumstances of this case?

Appellant’s Brief at 5.

A claim that crimes should have merged for sentencing purposes 

raises a challenge to the legality of the sentence, for which our standard of 

review is de novo and our scope of review is plenary. Commonwealth v. 

Nero, 58 A.3d 802, 806 (Pa.Super.2012) (quoting Commonwealth v. 

Quintua, 56 A.3d 399, 400 (Pa.Super.2012)). 

The Pennsylvania statute governing the merger of sentences provides:

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. § 9765. The statute “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 the statutory 
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elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 833 

(Pa.2009).

Appellant maintains the trial court should have merged the crimes of 

aggravated assault (with a deadly weapon) and voluntary manslaughter for 

sentencing purposes.

Aggravated assault with a deadly weapon is defined as:

A person is guilty of aggravated assault if he:

(4) attempts to cause or intentionally or knowingly causes 

bodily injury to another with a deadly weapon[.]

18 Pa.C.S. § 2702(a)(4). Deadly weapon is defined as “[a]ny firearm, 

whether loaded or unloaded, or any device designed as a weapon and 

capable of producing death or serious bodily injury, or any other device or 

instrumentality which, in the manner in which it is used or intended to be 

used, is calculated or likely to produce death or serious bodily injury.” 18 

Pa.C.S. § 2301.

Voluntary manslaughter is defined as:

(a) General rule.--A person who kills an individual without 

lawful justification commits voluntary manslaughter if at 

the time of the killing he is acting under a sudden and 

intense passion resulting from serious provocation by:

(1) the individual killed; or

(2) another whom the actor endeavors to kill, but he 

negligently or accidentally causes the death of the 

individual killed.

(b) Unreasonable belief killing justifiable.--A person who 

intentionally or knowingly kills an individual commits 

voluntary manslaughter if at the time of the killing he 

believes the circumstances to be such that, if they existed, 
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would justify the killing under Chapter 5 of this title 

(relating to general principles of justification), but his belief 

is unreasonable.

18 Pa.C.S. § 2503. 

The crime of aggravated assault with a deadly weapon requires the 

use of a deadly weapon, which is not an element of the offense of voluntary 

manslaughter. Further, voluntary manslaughter requires that a defendant 

kill someone, which is not an element of aggravated assault with a deadly 

weapon. See Commonwealth v. Weston, 749 A.2d 458, 462 (Pa.2000) 

(“Voluntary manslaughter, imperfect self-defense, requires that the 

Commonwealth establish that the defendant ‘intentionally and knowingly’ 

killed another.”). Therefore, under the merger statute, the convictions do 

not merge.

Appellant argues the application of 42 Pa.C.S. § 9765 to find that 

aggravated assault (with a deadly weapon) does not merge with voluntary 

manslaughter violates the Pennsylvania Constitution’s Double Jeopardy 

Clause.2 However, this Court has found 42 Pa.C.S. § 9765 does not violate 

the Pennsylvania Constitution. Commonwealth v. Wade, 33 A.3d 10 

(Pa.Super.2011). In Wade, this Court provided an extensive discussion of 

the history of the law regarding the merger of sentences and of state and 

federal double jeopardy precedent and concluded:

____________________________________________

2 Appellant concedes that Baldwin found that 42 Pa.C.S. § 9765 does not 

violate the United States Constitution’s Double Jeopardy clause.
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There is nothing in the text of our constitution, the case 

law interpreting the Pennsylvania double jeopardy clause, 

or more modern Pennsylvania or federal jurisprudence that 

reveals that the Pennsylvania Constitution affords greater 

double jeopardy protections in the merger of sentencing 

arena than does the federal constitution. Since the double 

jeopardy clause in the Pennsylvania Constitution originally 

applied only to multiple prosecutions in capital cases and 

not sentencing merger, the framers of the Pennsylvania 

constitution never intended to restrict the legislature, via 

our double jeopardy clause, from defining merger of 

sentence issues.

In conclusion, having reviewed the federal and state 

clauses, as well as pertinent Pennsylvania and federal 

authority, we find no evidence to suggest that Article 1, § 

10 prohibits the legislature from defining merger in a 

purely elemental fashion. 

Id. at 121.

Because the crimes of aggravated assault (with a deadly weapon) and 

manslaughter each have an element that is not an element of the other 

crime, merger is not proper. See Baldwin, 985 A.2d at 833; 42 Pa.C.S. § 

9765. The trial court did not err in finding the crime of aggravated assault 

(with a deadly weapon) did not merge with the crime of voluntary 

manslaughter for sentencing purposes.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/21/2016