Com. v. Lezinsky

• Decision Date: 23 March 1979
• Citation: 264 Pa.Super. 476,400 A.2d 184
• Parties: COMMONWEALTH of Pennsylvania v. Joseph LEZINSKY, Appellant.
• Court: Pennsylvania Superior Court

Page 184

400 A.2d 184

264 Pa.Super. 476

COMMONWEALTH of Pennsylvania v. Joseph LEZINSKY, Appellant.

Superior Court of Pennsylvania.

Submitted June 12, 1978.

Decided March 23, 1979.

David P. Posatko, Public Defender, Tunkhannock, for appellant.

James E. Davis, Dist. Atty., Tunkhannock, for Commonwealth, appellee.

Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.

VAN der VOORT, Judge:

Defendant was charged with, and convicted in a jury trial of three crimes, Arson, Criminal Conspiracy, and Criminal Mischief. He was sentenced to two concurrent periods of five to ten years on the Arson and Criminal Conspiracy crimes; and to a consecutive sentence of two to five years on the Criminal Mischief. His appeal raises the issue of whether he may lawfully be sentenced separately (and consecutively) for the Criminal Mischief, which arose, says the defendant, "from the same incident", and from the commission by defendant of "but one act."

The "act" proved against defendant (and others) was that he participated in igniting a building which burned to the ground (the basis of the charge of arson) and destroying in the process of that fire 37 head of livestock enclosed in the barn.

The Commonwealth defends the legality of the separate sentences, saying that "although there was only one criminal act of setting the fire, there were separate and distinct injuries suffered, by the victims . . ." The record shows that the barn was owned by one party and the livestock by another. Thus, reasons the Commonwealth, such separate injuries justify separate sentences.

In Commonwealth ex. rel. Shaddock v. Ashe, 340 Pa. 286, at 288, 17 A.2d 190 (1940) our Supreme Court said:

"The law is well settled, as we stated in Commonwealth ex rel. Russo v. Ashe, 293 Pa. 322, 142 A. 317, that though separate counts of indictment may properly charge the same state of facts as constituting different offenses, yet where the distinct crimes set forth grew out of the same transaction, differing merely in degree, only one penalty can be imposed after conviction, and separate sentences for each offense charged, directing independent punishment to run consecutively are void as to all except that permissible upon conviction of the most serious charge . . ."

In Commonwealth v. Walker, 468 Pa. 323, at page 331, 362 A.2d 227, at page 231 (1976) Mr. Justice Eagen stated:

"Analysis of duplicitous sentence questions has traditionally revolved around the concept of injury to the sovereign, in this case the Commonwealth. One of the purposes of the criminal law is to punish offenses against the Commonwealth, as defined by the Legislature, and it follows that, '(t)he criminal prosecution is for the injury done to the Commonwealth, and not for the injury done to the individual who may, if entitled, obtain redress through a civil action. Where there is but one act of cause of injury, or death of a number of persons, there is but one injury to the Commonwealth, but where the acts or causes are separate, they are separate injuries to the peace and dignity of the Commonwealth . . .' "

In our present case, although there were various consequences to various victims the consequences derived from a single "act" or "transaction", specifically the ignition of the barn, which may be the basis of various charges, but ultimately of only one sentence. ¹

The trial judge's opinion rejected d...