Commonwealth v. Jones, A. (Concurring Opinion)

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[J-116-2005] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : : Appellee : : : v. : : : : ANDRE JONES, : : Appellant : No. 2 EAP 2005 Appeal from the Judgment of Superior Court entered on 12/17/03 at 936 EDA 2003 affirming the judgment of sentence entered on 3/5/03 in the Court of Common Pleas, Philadelphia County, Criminal Division at 0208-0378 ARGUED: October 18, 2005 CONCURRING OPINION MR. JUSTICE SAYLOR DECIDED: December 28, 2006 I have no objection to the majority s approach to sentencing merger in the absence of a specific expression of legislative intent; indeed, consistent with such approach, I believe that it is sensible to treat criminal trespass as a lesser-included offense of burglary. However, I agree with Madame Justice Newman that the Legislature has now evinced an intent in Section 9765 of the Judicial Code, 42 Pa.C.S. §9765, to require a pure statutory elements approach to sentencing merger. Since, however, the enactment of Section 9765 post-dates Appellant s offenses in this case, I do not believe that it need necessarily be applied here. Thus, I am able to join in the result of the majority opinion.

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