J-S18028-26 2026 PA Super 181
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE BROWN :
:
Appellant : No. 1378 MDA 2025
Appeal from the Judgment of Sentence Entered September 4, 2025
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001403-2023
BEFORE: DUBOW, J., BECK, J., and BENDER, P.J.E.
OPINION BY BECK, J.: FILED: AUGUST 11, 2026
Andre Brown (“Brown”) appeals from the judgment of sentence imposed
by the Dauphin County Court of Common Pleas (“trial court”) following his
conviction of one count each of aggravated assault, strangulation, simple
assault, and false imprisonment.1 On appeal, Brown challenges the legality of
his sentence, arguing that his sentences for simple assault and aggravated
assault should have merged. After careful review, we affirm.
Annazette Roberts (“Roberts”) was in a relationship with Brown for
approximately eleven months. N.T., 5/21-22/2025, at 26. At around 6:00
p.m. on March 5, 2023, Roberts went to Brown’s residence, where the two
drank several beers before going to Brown’s bedroom, where they lay down
and talked. Id. at 28. While they were lying in bed, Brown told Roberts that
1 18 Pa.C.S. §§ 2702(a)(1), 2718(a)(1), 2701(a)(1), 2903(a). J-S18028-26
he wanted to have sex. Id. at 28, 30-31. When Roberts declined his
advances, Brown became angry and demanded that she leave. Id. at 28, 31.
As Roberts got off the bed and began to dress, Brown rose from the bed,
pushed her onto a nearby chair, and began choking her, repeatedly squeezing
her neck with one hand in what Roberts described as a “Marine chokehold.”
Id. at 31-34. When Roberts began to yell, Brown shoved a sock into her
mouth to quiet her. Id. at 34. After Roberts managed to pull the sock from
her mouth, Brown retrieved a pair of scissors from a nearby dresser drawer
and cut Roberts’ shirt from her body. Id. at 28-29, 32–34.
Although Roberts was able to break free from the chair, Brown took hold
of her, pushed her onto the bed, and began choking her a second time. Id.
at 34–35. Roberts rolled over and fell onto the bedroom floor. Id. at 35.
While Roberts lay on the floor, Brown kicked the left side of her body
approximately four times, fracturing three of her ribs, and again began to
choke her. Id. at 35, 37. Roberts testified that during this third choking
episode she was temporarily unable to breathe and lost consciousness for
several seconds. Id. at 35, 37.
Roberts eventually got up from the floor, fled the bedroom, and ran
down the stairs toward the front door of the residence. Id. at 35, 37–38. As
she descended the stairs, Brown grabbed her from behind by the hair. Id. at
35, 38. One of Brown’s housemates, Michael Ellis (“Ellis”), opened his
bedroom door to find Roberts curled in a ball on the stairs with Brown standing
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over her, blocking her path down the stairs.2 Id. at 92–93. After Ellis yelled
at Brown to let Roberts go, Brown released her, returned to his bedroom, and
began throwing her belongings down the steps at her. Id. at 38, 93–94.
Roberts ran down the remaining stairs, out the front door, and down the
street to a house a few doors away. Id. at 29, 38. At Roberts’ request, the
woman who lived there called 911, and Roberts described to the operator what
Brown had done. Id. at 29, 38-40. Roberts was transported by ambulance
to the hospital, where she remained for four days. Id. at 29-30, 40. As a
result of the altercation, Roberts sustained numerous injuries, including
bruises and scratches around her eyes, face, lips, neck, throat, clavicle,
shoulders, chest, back, and hands; two broken fingernails; and three fractured
ribs. Id. at 35, 41-52.
The police arrested Brown and the Commonwealth charged him by
criminal complaint with simple assault and strangulation, predicating the
simple assault on his kicking Roberts in the side. The Commonwealth filed a
criminal information, charging Brown with strangulation, simple assault, and
false imprisonment. The Commonwealth later moved to amend the
information to add the charge of aggravated assault. The trial court granted
2 Ellis described the residence as a rooming house that he shared with four other individuals, including Brown. N.T., 5/21-22/2025, at 87. Although each resident had his or her own bedroom, the residents shared the remaining living spaces, including the living room, kitchen, bathroom, and dining room. Id.
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the motion. Relevantly, in the amended information, the Commonwealth only
included the elements of the crimes charged. Following a jury trial, the jury
found Brown guilty of aggravated assault, strangulation, simple assault, and
false imprisonment.
On September 4, 2025, the trial court sentenced Brown to an aggregate
term of three and one-half to seven years of imprisonment.3 Brown filed a
timely notice of appeal and a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b).
Brown’s sole issue presented before this Court is as follows: “Did the
trial court impose an illegal sentence in failing to merge counts 1 and 3,
aggravated assault [18 Pa.C.S. § 2702(a)(1)] and simple assault [18 Pa.C.S.
§ 2701(a)(1)], when the actions of the simple assault were the bases of the
aggravated assault conviction?” Brown’s Brief at 5.
Brown argues that his simple assault conviction must merge with his
aggravated assault conviction for two reasons. Id. at 14-15. First, citing
Commonwealth’s motion to amend criminal information, Brown contends that
the two offenses arose from a single criminal act, the kicking that injured
Roberts. Id. at 17 (citing Motion to Amend the Criminal Information,
3 At count one, aggravated assault, the trial court sentenced Brown to three and one-half to seven years in prison. At count two, strangulation, the trial court imposed a concurrent sentence of two and one-half to five years in prison. At count three, simple assault, the trial court imposed a concurrent sentence of one year of probation. At count four, false imprisonment, the trial court imposed a concurrent sentence of one year of probation.
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2/27/2024). Second, he asserts that the elements of simple assault are
subsumed within those of aggravated assault. Id. at 19.
This claim raises a challenge to the legality of Brown’s sentence, for
which our standard of review is de novo and our scope of review is plenary.
Commonwealth v. Talley, 236 A.3d 42, 50 (Pa. Super. 2020).
Section 9765 of the Sentencing Code directs our analysis of whether
crimes merge for sentencing purposes:
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’s mandate is clear. It 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 elements of the other.” Commonwealth v. Baldwin, 985 A.2d
830, 833 (Pa. 2009).
This Court has already held that the elements of simple assault under
section 2701(a)(1) are included in the crime of aggravated assault under
section 2702(a)(1).4 Commonwealth v. Boettcher, 459 A.2d 806, 811 (Pa.
4 A person commits aggravated assault if, in relevant part, he “attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life[.]” 18 Pa.C.S. § 2702(a)(1). A person commits simple assault if he "attempts to cause or intentionally, knowingly or recklessly (Footnote Continued Next Page)
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Super. 1983); see also Commonwealth v. Hinds, 315 A.3d 62, *6 (Pa.
Super. 2024) (non-precedential decision) (“The elements of simple assault
under [s]ection 2701(a)(1) are subsumed within the elements of aggravated
assault under [s]ection 2702(a)(1).”).5
The only outstanding question then is whether the two convictions arose
from a single criminal act. As this Court has explained:
When considering whether there is a single criminal act or multiple
criminal acts, the question is not whether there was a break in the
chain of criminal activity. The issue is whether 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. In determining whether two or more convictions arose
from a single criminal act for purposes of sentencing, we must
examine the charging documents filed by the Commonwealth.
Commonwealth v. Steager, 357 A.3d 137, 145 (Pa. Super. 2026) (citation
and paragraph break omitted). The Commonwealth’s charging documents
include the criminal information, criminal complaint, and affidavit of probable
cause. Commonwealth v. Kimmel, 125 A.3d 1272, 1277 (Pa. Super. 2015)
(en banc). In addition to the charging documents, the court may view the
causes bodily injury to another[.]" Id. § 2701(a)(1). The Crimes Code defines “bodily injury’ as “[i]mpairment of physical condition or substantial pain,” and “serious bodily injury” as “[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” Id. § 2301.
5 We may cite non-precedential decisions of this Court filed after May 1, 2019,
for their persuasive value. See Pa.R.A.P. 126(b).
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evidence of record in determining whether the convictions arose out of a single
criminal act. Commonwealth v. Martinez, 153 A.3d 1025, 1032 (Pa. Super.
2016); see also Commonwealth v. Navedo, 356 A.3d 883, *5 (Pa. Super.
2026).
The affidavit of probable cause stated the following:
On 3/5/23, I was in full police uniform in marked patrol unit 204
assigned to district 4 for 3rd platoon. At approximately 2201
hours I was dispatched to 620 Schuylkill St for an assault in
progress. On arrival I observed a female slumped over in front of
622 Schuylkill St. The female was identified as Annazette Roberts.
Roberts stated her boyfriend Andre Brown broke her rib[s] and
strangled her. Roberts stayed hunched over, yelling in pain, and
saying “my ribs.” She stated the following. Brown and her where
laying in bed in his residence at 636 Schuylkill St. Brown started
to touch her and she told him to stop. Brown had been drinking.
He took his hands and placed them around Roberts neck to the
point she passed out. Brown took scissors and cut her shirt off.
Then Brown started to kick Roberts. In her right side repeatedly.
She got a hold of the scissors and stab Brown with those scissors
in Brown’s right ring finger. I observed marks on Roberts left side
of her neck. EMS asked Roberts if she ever lost consciousness, at
which she stated she blacked out for a second. I observed [] some
bruising to be forming on her right side, where Roberts stated
Brown kicked her. I am asking for Brown to be charged with 2718
A1; Strangulation and 2701 A1 simple assault.
Affidavit of Probable Cause, 3/6/2023.
In the criminal complaint, the simple assault count was tied to Brown
kicking Roberts on her right side, which caused bruising. Criminal Complaint,
3/6/2023, at 3. In the initial criminal information, the Commonwealth merely
provided the elements of each crime, mirroring the language in the criminal
statutes. Criminal Information, 4/26/2023.
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The Commonwealth then filed a motion to amend the criminal
information, seeking to add a charge of aggravated assault. Motion to Amend,
2/27/2024, at 1-5 (unnumbered). Specifically, the Commonwealth stated the
following:
It is clear that in this case the charge of aggravated assault
derives from the same factual situation as the crime specified in
the original criminal information. The defendant is charged with
simple assault for kicking the victim in the side multiple times until
her ribs broke. This same set of facts support the charge of
aggravated assault.
Id. at 4-5. The trial court granted the Commonwealth’s motion. Trial Court
Order, 3/2/2024. Subsequently, the Commonwealth filed an amended
information, again only including the elements of each charged crime.
Amended Information, 3/11/2024.
In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court agreed with
Brown that his simple assault and aggravated assault convictions should have
merged for sentencing purposes:
In the instant matter, the charges against [Brown] for simple
assault and aggravated assault both arise out of the same criminal
act. In the criminal complaint filed by Officer Alexandrea
Umberger on March [6], 2023, the charge of simple assault was
based [on] Appellant’s act of “kick[ing] the victim, [] Roberts, [on]
her right side causing bruising.” [] Criminal Complaint,
3/[6]/[20]23, [at] 3. [Brown] was not initially charged with
aggravated assault. However, on February 27, 2024, the
Commonwealth filed a motion to amend the criminal information
to add a charge of aggravated assault against [Brown]. In its
motion to amend the criminal information, the Commonwealth
stated [the charge of aggravated assault derives from the same
factual situation as the crime of simple assault.] Considering that
the Commonwealth’s charges against [Brown] for aggravated
assault and simple assault arose out of the same criminal act, i.e.,
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kicking [Roberts] in her side, th[e trial c]ourt is constrained to
agree that these two charges should have merged for purposes of
sentencing. Taking this into consideration, [the trial court]
concede[s] that it would be appropriate for the Superior Court to
vacate [Brown]’s sentence for simple assault rather than
remanding the matter to th[e trial c]ourt for resentencing.
Trial Court Opinion, 1/16/2026, at 7-8 (some capitalization omitted).
We respectfully disagree. Although the Commonwealth’s motion to
amend asserted that the aggravated assault “derives from the same factual
situation” as the simple assault, the motion to amend is not a charging
instrument. See Kimmel, 125 A.3d at 1277; see also Commonwealth v.
Jenkins, 96 A.3d 1055, 1060 (Pa. Super. 2014) (“We must determine
whether [defendant’s] actions ... constituted a single criminal act, with
reference to elements of the crime as charged by the Commonwealth.”)
(quotation marks and citation omitted). In viewing the totality of the charging
documents—the affidavit of probable cause, criminal complaint, and amended
criminal information—we conclude that Brown committed several distinct
criminal acts, which separately establish both aggravated assault and simple
assault.
Although the amended criminal information charging Brown with distinct
crimes of aggravated assault and simple assault merely stated the elements
of the respective statutes in setting forth the crimes, the affidavit of probable
cause parsed Brown’s actions, stating he both choked and kicked Roberts.
Affidavit of Probable Cause, 3/6/2023. Either of these separate actions could
give rise to a finding of aggravated assault. See 18 Pa.C.S. § 2702(a)(1).
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Indeed, the trial court found this to be true, as it instructed the jury at the
close of trial it could find aggravated assault on either of two bases: that
Brown intended to inflict serious bodily injury (the choking), or that he actually
caused such injury (the kicking). N.T., 5/21-22/2025, at 188-90. The
evidence presented at trial, summarized above, clearly established that Brown
both choked and kicked Roberts. Id. at 34-37.
Because the jury was charged that the aggravated assault could rest on
either act, and jury found Brown guilty of aggravated assault, whether that
the jury’s verdict relied on the choking or the kicking is unknown. Taking the
charging documents and the evidence presented, and the jury charge together
as a whole, we conclude that the evidence of record does not establish that
the aggravated assault and the simple assault arose from a single criminal
act, and the sentences therefore do not merge under 42 Pa.C.S. § 9765. See
Kimmel, 125 A.3d at 1276-77 (concluding that where the criminal complaint
and information set forth generic charges, while the affidavit of probable cause
supplied the factual narrative of incident, the documents as a whole delineated
separate criminal acts, which was reflected in the trial testimony, and the
sentences did not merge); see also Navedo, 356 A.3d 883, at *5 (concluding
that reviewing the charging documents, including the criminal complaint and
information that set forth the charges mirroring the language of the criminal
statutes and the affidavit of probable cause that outlined four separate sexual
assaults, in conjunction with the evidence of record, established that the
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appellant’s convictions arose from multiple criminal acts and therefore, the
sentences did not merge).
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 08/11/2026
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