Com. v. Campbell

Decision Date31 January 1986
Citation351 Pa.Super. 56,505 A.2d 262
PartiesCOMMONWEALTH of Pennsylvania v. Charles CAMPBELL, Appellant. 1614 Phila. 1982
CourtPennsylvania Superior Court

Jules Epstein, Asst. Public Defender, Philadelphia, for appellant.

Ann C. Lebowitz, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before SPAETH, President Judge, and CAVANAUGH, BROSKY, ROWLEY, WIEAND, McEWEN, DEL SOLE, BECK and TAMILIA, JJ.

OPINION ANNOUNCING JUDGMENT OF THE COURT

ROWLEY, Judge:

This appeal, from the Judgments of Sentence imposed on appellant, is before the Court en banc to consider (1) whether a criminal defendant's claim that his convictions merge for sentencing purposes is waived by failing to raise the issue in the trial court, and (2) if not, whether appellant's conviction for unauthorized use of an automobile merges into his conviction for theft.

Following a non-jury trial, appellant was found guilty of theft by unlawful taking or disposition, 1 theft by receiving stolen property 2 and unauthorized use of an automobile. 3 Post-verdict motions were filed and denied. On May 10, 1982, appellant was sentenced to 11 1/2 to 23 months imprisonment on the conviction for unauthorized use and five years probation on the convictions for theft. 4 The sentences were to be served concurrently. This direct appeal followed. The sole issue raised is whether appellant's conviction for unauthorized use merges into the convictions for theft. 5

I.

Appellant first argues that his failure to raise the merger issue in the trial court did not waive the issue for appellate consideration since he is challenging the legality of his sentences, not the lawfulness of the convictions, and, appellant asserts, an illegal sentence can never be waived. While acknowledging a split of authority in this Court, the Commonwealth argues that appellant has waived his merger claim because he did not raise it in the trial court either at sentencing or in a motion to modify his sentences. The Commonwealth maintains that because appellant's sentence is within the statutory limits and not violative of any specific statutory provision, it would be unjust and inefficient to reward appellant for his failure "to bring [the] alleged error to the attention of the trial judge." Commonwealth's brief at 5.

In Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), our Supreme Court refused to find waiver when appellant alleged that his sentences were duplicitous and violated the double jeopardy clause of the United States Constitution. U.S. Const. amend. V. The Court held that

it is beyond the power of a court imposing sentence to impose multiple sentences on a defendant for a single act; those sentences are unlawful.... The lawfulness of those sentences must be viewed together, where, as here, the facts set out in the indictment make out but a single act upon which the charges in the indictment rest.

Id. at 330 n. 3, 362 A.2d at 230 n. 3 (citations omitted); 6 Commonwealth v. Sparrow, 471 Pa. 490, 501-502 n. 7, 370 A.2d 712, 718 n. 7 (1977). Similarly, in Commonwealth v. Norris, 498 Pa. 308, 319, 446 A.2d 246, 251 (1982), the Commonwealth's claim of waiver was rejected by the Supreme Court when appellant raised a double jeopardy claim identical to the one advanced in Walker. The Court observed that since appellant challenged only the legality of the sentences, and not the validity of the convictions, his claim had not been waived.

In arguing that appellant has waived his merger claim, the Commonwealth relies in part on Commonwealth v. McCabe, 242 Pa.Super. 413, 364 A.2d 338 (1976), aff'd per curiam, 479 Pa. 273, 388 A.2d 323 (1978) in which this Court distinguished Walker and concluded that appellant had waived his merger claim. The majority in McCabe distinguished Walker on two grounds: in Walker the defendant raised the merger claim on direct appeal whereas the defendant in McCabe raised the claim only after he had exhausted his right of direct appeal; also, in Walker it was clear that the indictment charging the defendant set forth only one act upon which the multiple charges were based, while in McCabe, it was not clear from the indictments that the charges were based upon a single act. In McCabe, the indictments charged the defendant with crimes committed " 'on (or about) July 19, 1972.' " Id. at 417, 364 A.2d at 340. A Bill of Particulars, requested by the defendant, did not clarify whether the charges were a result of one criminal act or several. The Court declined to look beyond the indictments to resolve the merger issue and concluded:

Under these circumstances, a complete review of the trial testimony would be necessary to determine whether appellant's conviction for assault with intent to maim and assault with intent to kill were founded upon several criminal acts committed at different times or upon solely one act.

We are reluctant to again consider the totality of evidence introduced against appellant in this case. When the indictments do not indicate that the sentences imposed were based on one act or several acts, we cannot say that the sentences were unlawful on their face. Consequently, we hold that appellant has waived his double punishment claim.

Id.

In Commonwealth v. Tolassi, 303 Pa.Super. 177, 449 A.2d 636 (1982) this Court discussed the distinction made in McCabe and enunciated the requirement that in order to avoid a claim of waiver, the alleged illegality of the sentence must somehow appear "on the face of the record." Id. at 181, 449 A.2d at 638. However, Tolassi did not involve the merger of sentences; therefore, its statement that an illegal sentence must appear on the face of the record in order to avoid a holding of waiver is dictum. Also, in Commonwealth v. Kull, 267 Pa.Super. 55, 405 A.2d 1300 (1979) (per curiam) this Court found the merger claim had been waived, but then proceeded to address the claim on its merits.

In contrast to McCabe, this Court has refused to find waiver where the underlying facts indicated that the sentences merged; in so doing we did not limit our review to the information or indictment but instead cited Walker for the proposition that imposing multiple sentences is beyond the power of the sentencing court. See Commonwealth v. Franklin, 306 Pa.Super. 422, 430 n. 4, 452 A.2d 797, 801 n. 4 (1982); Commonwealth v. Moore, 300 Pa.Super. 488, 493 n. *, 446 A.2d 960, 963 n. * (1982); Commonwealth v. Crocker, 280 Pa.Super. 470, 474 n. 2, 421 A.2d 818, 820 n. 2 (1980). 7

In the present case, the informations charge that the acts were committed on or about April 27, 1981 in Philadelphia County. The theft and receiving information list the owner or custodian of the property and describe the property as an automobile. The unauthorized use information lists the same owner. As in Commonwealth v. McCabe, supra, it is unclear whether the convictions were "founded upon several criminal acts committed at different times or upon solely one act." Id., 242 Pa.Super., at 417, 364 A.2d at 340. Thus, if we are to be bound by the rationale in McCabe, it would lead us to conclude that appellant has waived his merger claim.

After a careful review of Commonwealth v. Walker, supra, we are satisfied that it does not compel us to limit our review of the record to the information or indictment in determining whether a merger claim has been waived. In Walker the Supreme Court noted: "The lawfulness of those sentences must be viewed together, where, as here, the facts set out in the indictment make out but a single act upon which the charges in the indictment rest." Id., 468 Pa., at 330 n. 3, 362 A.2d at 230 n. 3. However, we do not interpret this language as mandating that our review must be limited to the information or indictment; nor do we read it as limiting the clear holding in Walker that a merger claim is tantamount to a claim that the sentence is unlawful and, as such, cannot be waived. Instead, we interpret the language as making reference only to the case that was then before the Supreme Court. We agree with Judge Hoffman's dissenting opinion in McCabe: "I recognize that the waiver doctrine is grounded in notions of judicial economy, and that review of the record does require additional judicial effort. However, I find no support in Walker for the Majority's distinction. In addition, the Majority cites no cases in support of its proposition--there are none." Id., 242 Pa.Super., at 420, 364 A.2d at 342. We disapprove the language in McCabe which limits appellate review of a sentencing merger claim to either the indictment or information.

The question of the legality of multiple sentences, based on a claim that the convictions should have merged for sentencing, is not waived by the failure to raise it in the trial court. This is because multiple sentences for a single criminal act are unlawful and are beyond the power of the trial court. Commonwealth v. Walker, supra. We hold that a merger of sentencing claim may be raised for the first time on appeal or in a collateral proceeding 8 and that, when so raised, it is incumbent upon this Court to review the entire record, as certified to us, to ascertain whether the convictions merge for sentencing. This Court will not limit itself to the information or indictment in resolving the issue. To the extent that Commonwealth v. McCabe, supra, and cases which follow McCabe hold otherwise, they are overruled.

II.

Having found that appellant has not waived his merger claim by raising it for the first time on appeal, we now turn to the merits of the claim. Appellant argues that his unauthorized use of the same automobile which he had stolen earlier comprised one criminal act and, consequently, only one sentence could lawfully be imposed. Appellant requests that we either vacate his sentence for the lesser offense of unauthorized use or vacate the sentence and remand for resentencing in accordance with the law.

The Commonwealth argues that ap...

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