Commonwealth v. Boerner

CourtSuperior Court of Pennsylvania
Writing for the CourtAuthor: Lipez
Citation281 Pa.Super. 505,422 A.2d 583
PartiesCOMMONWEALTH of Pennsylvania, v. William Paul BOERNER, a/k/a Joseph R. Smith, Appellant.
Decision Date03 October 1980

422 A.2d 583

281 Pa.Super. 505

COMMONWEALTH of Pennsylvania,

William Paul BOERNER, a/k/a Joseph R. Smith, Appellant.

Superior Court of Pennsylvania.

October 3, 1980

Submitted March 23, 1979. [422 A.2d 584] [Copyrighted Material Omitted] [422 A.2d 585]

[281 Pa.Super. 509] Ronald F. O'Driscoll, Asst. Public Defender, Lansdale, for appellant.

James A. Cunningham, Asst. Dist. Atty., Pottstown, for Commonwealth, appellee.


LIPEZ, Judge:

Appellant was convicted in a jury trial of criminal conspiracy, 18 Pa.C.S. § 903, theft by unlawful taking of movable property 18 Pa.C.S. § 3921(a), theft by receiving stolen goods, 18 Pa.C.S. § 3925, and retail theft, 18 Pa.C.S. § 3929. Post-verdict motions were filed and denied. Concurrent sentences of three to six years for theft of movable property and two-and-a-half to five years for retail theft were imposed. The sentence for criminal conspiracy was three to six years, to run consecutive to the other two sentences. [1]


Appellant's first contention is that the evidence was insufficient to support the verdicts. Extensive testimony from two Commonwealth witnesses established that on the afternoon of September 4, 1976 appellant and a companion entered the Bailey, Banks & Biddle store in Bala Cynwyd, [281 Pa.Super. 510] Montgomery County. Appellant looked at several valuable diamond rings for sale, and said that he would be back with a $500 check in order to make a deposit on one. A few hours later, appellant returned with his companion and asked to see a diamond ring which sold for about $12,000. While appellant was holding the ring and examining it, the companion slowly walked to the front door of the store and opened it. Carrying the ring, appellant then suddenly bolted for the door, and both he and his companion fled. The thorough identification testimony from the eyewitnesses was corroborated by expert testimony concerning the handprints appellant had left on the store counter, which had been wiped clean shortly before he and his companion arrived the second time. Viewed in the light most favorable to the Commonwealth as verdict winner, the evidence was clearly sufficient for the jury to infer guilt beyond a reasonable doubt for criminal conspiracy, theft by unlawful taking, and retail theft. [2]


Appellant also claims he is entitled to discharge because the court below erred in denying his motion to dismiss all charges under Pennsylvania Rule of Criminal Procedure 1100, for failure to commence trial within 180 days of the filing of the complaint. The complaint was filed on September 10, 1976. Trial commenced 279 days later on June 17, 1977. However, Rule 1100(d) provides in pertinent part:

"In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceeding as results from:

(1) the unavailability of the defendant...."

Appellant was still at large when the complaint was filed, and a warrant was issued for his arrest. The Commonwealth is entitled to the unavailability exclusion if it [281 Pa.Super. 511] establishes by a preponderance of the evidence that police acted with due diligence in executing the arrest warrant. [422 A.2d 586] Commonwealth v. Mitchell, 472 Pa. 553, 562, 372 A.2d 826, 830 (1977). A warrant was delivered to Philadelphia police on September 15, 1976 and appellant was arrested 135 days later on January 28, 1977. The transcript of the hearing on the motion to dismiss provides overwhelming support for the lower court's conclusion that the Commonwealth proved the police's due diligence, because extensive efforts by the police to locate appellant and serve the warrant were repeatedly frustrated by appellant's use of numerous aliases and addresses of record. [3] Exclusion of this 135-day period alone reduces the time in bringing appellant to trial from 279 days to 144, well within the 180-day limit of Rule 1100(a)(2). Accordingly, the lower court properly denied appellant's motion to dismiss under Rule 1100. [4]

[281 Pa.Super. 512] III.

Appellant contends that he could not properly be convicted of theft by unlawful taking, receiving stolen goods or conspiracy, and that the trial judge erred in charging the jury that the appellant could be convicted of these crimes. Appellant's argument is that the legislature intended that thefts from retail establishments should be governed solely by the specific provisions on retail theft in 18 Pa.C.S. § 3929. This claim could have been raised, but was not, in a pre-trial motion to quash the informations charging theft by unlawful taking, receiving stolen goods and conspiracy. Therefore the trial judge properly found the claim waived by failure to raise it pre-trial. Commonwealth v. Williams, 252 Pa.Super. 587, 384 A.2d 935 (1978).


Appellant claims that his being sentenced for retail theft, theft by unlawful taking and criminal conspiracy violated: (A) the rules of statutory construction; and (B) the doctrine of merger and appellant's double jeopardy rights.


Appellant's statutory construction argument is that because the provisions of the retail theft statute are specific, they were intended by the legislature to be the exclusive provisions under which someone committing a theft from a retail establishment could be sentenced. This argument raises, under the rubric of sentencing, precisely [422 A.2d 587] the same attack on the validity of the underlying convictions as the claim we previously found waived in part III under Commonwealth v. Williams, supra, for failure to raise it in a [281 Pa.Super. 513] pre-trial motion to quash the informations charging crimes other than retail theft. [5] Appellant cannot avoid this waiver of a nonjurisdictional issue [6] merely by relabelling it as an attack on the legality of the sentence. Commonwealth v. Montgomery, 485 Pa. 110, 115, 401 A.2d 318, 320 (1979).


Since all of appellant's sentences were for non-capital crimes, there arises the problem, unique to Pennsylvania, [7] of whether the state double jeopardy clause, Pa.Const., art. I, § 10, is applicable. In cases spanning more than a century, our Supreme Court held that the Pennsylvania double jeopardy clause applies only to capital offenses. E. g., Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964); Commonwealth v. Simpson, 310 Pa. 380, 165 A. 498 (1933); McCreary v. Commonwealth, 29 Pa. 323 (1857). However, six years ago in Commonwealth v. Brown, 455 Pa. 274, 278, 314 A.2d 506, 509 (1974), the Court found a violation of both the federal and state double jeopardy clauses in [281 Pa.Super. 514] a case clearly involving only a non-capital offense. [8] Without referring to Brown, the Court three years ago in Commonwealth v. Sparrow, 471 Pa. 490, 501-02, n.7., 370 A.2d 712, 718, n.7 (1977), apparently returned to the McCreary-Simpson-Baker holding that Pennsylvania double jeopardy only applied to capital cases. Last year, without referring to McCreary, Simpson, Baker or Sparrow, the Court in Commonwealth v. Tome, 484 Pa. 261, 275, 398 A.2d 1369, 1377 (1979), reached a contrary result by finding a state as well as federal double jeopardy violation with respect to a non-capital offense, [9] relying on Commonwealth v. Brown, supra. While these and other cases have produced some confusion, [10] we consider the issue to have been resolved in [281 Pa.Super. 515] favor of applying the [422 A.2d 588] Pennsylvania double jeopardy clause to both capital and non-capital offenses, under the Court's most recent holdings in Commonwealth v. Tome, supra, and Commonwealth v. Mitchell, 488 Pa. 75, --- & n.2, 410 A.2d 1232, 1233 & n.2 (1980). Accordingly we shall consider appellant's sentencing claims under the Pennsylvania double jeopardy clause, as well as merger doctrine and federal double jeopardy. [11] [422 A.2d 589]

[281 Pa.Super. 516] With respect to criminal conspiracy, both appellant's merger and double jeopardy claims must fail. The Crimes Code in no way changed the settled rule that criminal conspiracy does not merge into the completed offense which is the object of the conspiracy. Commonwealth v. [281 Pa.Super. 517] Miller, 469 Pa. 24, 28, 364 A.2d 886, 887 (1976). It is also settled that conviction for both conspiracy and the completed offense does not violate the double jeopardy provisions of either the federal or state constitution. Pinkerton v. United States, 328 U.S. 640, 643-44, 66 S.Ct. 1180, 1181-1182, 90 L.Ed. 1489 (1946) (Federal double jeopardy); Commonwealth v. Corcoran, 78 Pa.Super. 430, 433-36 (1922) (Pennsylvania double jeopardy). [12]

We agree with appellant, however, that he could not receive concurrent sentences for both theft by unlawful taking and retail theft, since both convictions arose out of the single act of theft of the diamond ring. [13] Once proof of the theft by unlawful taking was complete, so was proof of the retail theft, and vice-versa. It is therefore unquestionable that the two crimes merged for sentencing purposes, and appellant could be sentenced for only one. [14] Commonwealth [281 Pa.Super. 518] v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973); Commonwealth v. Jackson, 271 Pa.Super. 131, 412 A.2d 610 (1979); cf. Commonwealth v. Lawton, 272 Pa.Super. 40, ---, 414 A.2d 658, 662-63 (1979); see also Commonwealth v. Buser, 277 Pa.Super. 451, ---, 419 A.2d 1233, 1236-1238 (1980). [422 A.2d 590]

The only question remaining is for which crime appellant could be sentenced. We believe it is clear from Commonwealth v. Nelson, supra, that when crimes merge for sentencing purposes, the one for which a defendant may be sentenced is the most serious crime, i. e., the one to which the legislature attached the greatest possible maximum penalty. See also Commonwealth ex rel. Shaddock v. Ashe, 340 Pa. 286, 288-89, 17 A.2d 190, 190-91 (1940); Commonwealth ex rel. Russo v. Ashe, 293 Pa. 322, 324, 142 A. 317, 318 (1928); ...

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