Commonwealth v. Black

• Decision Date: 06 July 1979
• Parties: COMMONWEALTH of Pennsylvania v. Randy Lee BLACK, Appellant.
• Court: Pennsylvania Superior Court

407 A.2d 403

267 Pa.Super. 598

COMMONWEALTH of Pennsylvania v. Randy Lee BLACK, Appellant.

Superior Court of Pennsylvania.

July 6, 1979

Submitted Dec. 14, 1977.

Robert E. Kerper, Jr., Asst. Public Defender Reading, for appellant.

J Michael Morrissey, Dist. Atty., Reading, for Commonwealth appellee.

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

CERCONE, President Judge:

The instant appeal arises from the judgment of sentence imposed on a verdict of guilty for theft following a jury trial. Appellant's principal contention is that the court erred in accepting what appellant characterizes as an illegal verdict. ^[1] Therefore, appellant claims he is entitled to a new trial. We disagree and will affirm the judgment of sentence.

At trial appellant stood accused of two counts of theft by unlawful taking or disposition, ^[2] and one count of burglary, ^[3] all arising from the same criminal episode. Due to its misconstruction of a provision of the Crimes Code, the court instructed the jury that it could not return a verdict finding appellant guilty of all charges. Rather, the court stated, if the jury were convinced of appellant's guilt beyond a reasonable doubt on all counts, it must select one of the offenses to return the guilty verdict. Not surprisingly, this charge engendered some confusion. Thus, when the jury first returned a verdict of guilty on all charges the court would not accept it, and reiterated its earlier charge in relevant part. Once again, the jury returned a verdict of guilty of burglary and theft according to the verdict slip; but, in announcing the verdict, the foreman only stated the verdict of guilty for theft. A poll of the jury revealed that all twelve jurors agreed that appellant was guilty of theft, but only nine still agreed at that point on the burglary count. Undoubtedly frustrated, the trial judge stated at side bar that he would return the jury for further deliberations or, if appellant wished, "mold" the verdict to find appellant guilty of theft and not guilty of burglary. Appellant's counsel opted for the latter course and the verdict was so entered. Appellant now contends that his being put to this choice was improper and that the verdict as entered was illegal.

The decision in the instant case is controlled by The Crimes Code,18 Pa.C.S. § 3502(d), the statute the trial court misconstrued, which provides:

"Multiple Convictions. A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree."

Although not referring to this section, appellant assumes that a verdict returned by a jury finding appellant guilty of both burglary and theft by unlawful taking is illegal and "unauthorized." Actually, such a verdict is logically and legally proper, generally speaking. See, e. g., Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941). What the Crimes Code prohibits is Convicting appellant of both burglary and theft by unlawful taking. ^[4]

Of the distinction between a verdict and a conviction our Supreme Court long ago said: "When the law speaks of a 'Conviction,' it means a Judgment, and not merely a Verdict, which in common parlance is called a 'conviction.' " Smith v. Commonwealth, 14 Serg. & R. 69, 70 (1826). In the instant case, the trial court should have accepted the jury's initial verdict, "convicted" appellant of burglary, and sentenced him thereon. In situations where the trial court has wrongfully convicted appellant of burglary and the offense which it was his intent to commit after the burglarious entry, and sentenced him on both, we have not talked of verdicts "unauthorized by the law" and awarded appellants new trials. Instead, we have merely vacated the lesser of the two sentences. See, e. g., Commonwealth v. Price, 258 Pa.Super. 625, 391 A.2d 696 (1978); Commonwealth v. Wilks, 250 Pa.Super. 182, 378 A.2d 887 (1977); Commonwealth v. Simmons, 233 Pa.Super. 547, 336 A.2d 624 (1975). When the trial judge refused to accept the jury's initial verdict and subsequently gave appellant the option of accepting simply the verdict of guilty of theft by unlawful taking, he gave appellant undeserved leniency. Obviously, burglary is the more serious offense.

Finally, appellant's reliance on Commonwealth v. King, 238 Pa.Super. 190, 357 A.2d 556 (1976) is misplaced. King Held that verdicts of guilty for burglary and receiving stolen goods were inconsistent. However, burglary and theft by receiving are inconsistent for the same reason that theft by receiving and theft by unlawful taking are inconsistent the thief and the receiver must be two different persons, at least insofar as those offenses have been defined in Pennsylvania. See Commonwealth v. Simmons,233 Pa.Super. [267 Pa.Super. 603] at 560, 336 A.2d 624. On the other hand, under the Crimes Code, a person may be both a burglar and a thief; the Crimes Code merely prohibits his being punished as both. Since appellant has not been doubly punished, he is entitled to neither a new sentence nor a new trial.

For the foregoing reasons the judgment of sentence is affirmed.

PRICE, J., files a dissenting opinion.

JACOBS, former President Judge, did not participate in the consideration or decision in this case.

PRICE, Judge dissenting:

I dissent from the majority for the reason that the court below erred in "molding" the verdict to find appellant guilty of the theft offense.

Under 18 Pa.C.S. § 3502(d) "(a) person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry . . . ." Instantly, appellant was charged with burglary and with the offense which he intended to, and did, commit after he had effected his entry, to-wit, theft. It was, therefore, improper for the jury to find appellant guilty of both offenses.

In Commonwealth v. King, 238 Pa.Super. 190, 357 A.2d 556 (1976), we reversed a conviction when the jury returned with a verdict finding the defendant guilty of burglary and theft by receiving stolen property. Both offenses arose out of the same criminal episode. The court accepted the verdict but resolved the inconsistency by ignoring the theft conviction and sentencing the defendant on the burglary charge. This court reversed, holding that the lower court erred in permitting the jury to return a verdict contrary to its instructions.

Reviewing King, I would find that case dispositive of the instant proceeding. Although the majority in the last paragraph of its opinion attempts to distinguish King based upon the difference in...