Commonwealth v. McCabe

• Decision Date: 27 September 1976
• Citation: 364 A.2d 338,242 Pa.Super. 413
• Parties: COMMONWEALTH of Pennsylvania v. Robert P. McCABE, Appellant.
• Court: Pennsylvania Superior Court

364 A.2d 338

242 Pa.Super. 413

COMMONWEALTH of Pennsylvania v. Robert P. McCABE, Appellant.

Superior Court of Pennsylvania.

September 27, 1976.

Michael B. Kean, R. Sebastian, West Chester for appellant.

Vram Nedurian, Jr., Asst. Dist. Atty., Newtown Square, for appellee.

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

JACOBS Judge:

'On July 19, 1972, Daniel Centrone, a sixteen year old youth, received extensive injuries as a result of a vicious beating and stabbing administered by a group of men belonging to the Warlocks Motorcycle Club in the Delcroft Shopping Center Folcroft, Delaware County, Pennsylvania. As a result of this beating the victim sustained severe cerebral contusions, brain stem contusions, resultant brain injury, rigidity of arms and legs, stab wounds of the back, cardiac arrest and remained in a coma for three weeks after the beating. The youth subsequently spent twenty-two weeks at Fitzgerald Mercy Hospital and six weeks at the Magee Rehabilitation Center.' Opinion of Lower Court at 1. Appellant, Robert P. McCabe, was one of three persons charged with the crime. After a trial by jury, appellant was found guilty of assault with intent to maim, assault with intent to kill, and conspiracy. ^[1] The following sentences were then imposed: 2 1/2 to 5 years of imprisonment for assault with intent to maim, 3 1/2 to 7 years imprisonment for assault with intent to kill, and 1 to 2 years of imprisonment for conspiracy. The sentences were directed to run consecutively. Appellant's judgment of sentence was affirmed by this Court and allocatur was refused by our Supreme Court. Commonwealth v. McCabe, 229 Pa.Super. 758, 325 A.2d 641, Allocatur refused, 229 Pa.Super. Xxxvii (1974).

Subsequently, appellant filed with the lower court a petition for the correction of his sentence. He argued to the lower court that his conviction for assault with intent to maim merged into his conviction for assault with intent to kill and, therefore, he was being punished twice for the same act by being sentenced separately for each crime. However, it is admitted by appellant that the double punishment argument was not raised at the trial court level nor raised on appeal to this Court or the Supreme Court. It is also evident that the various sentences appellant received for the crimes of which he was found guilty were individually within the statutory limits and not unlawful per se. Generally, when one offense merges into another only one punishment may then be imposed. See Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973); Commonwealth ex rel. Tokarchik v. Claudy, 174 Pa.Super. 509, 102 A.2d 207, Allocatur refused, 174 Pa.Super. Xxvii (1954). Nevertheless, on several occasions we have held that where the sentence is lawful per se (within the statutory limits) and no objection is made in the lower court to the resulting double punishment, we will consider the question as having been waived. Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722, Allocatur refused, 233 Pa.Super. Xxxv (1975); Commonwealth v. Rispo, 222 Pa.Super. 309, 294 A.2d 792, Allocatur refused, 222 Pa.Super. Xxxii (1972). See also Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974). Recently, however, our Supreme Court has held that a challenge to a sentence may be made on appeal even though no objection was entered in the court below. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (filed July 6, 1976). In that case, defendant objected on direct appeal to the imposition of two sentences of imprisonment for the commission of one criminal act. Because 'the facts set out in the indictment (made) out but a single act upon which the charges in the indictment' were based, the Supreme Court held that it was Unlawful per se for the defendant to be sentenced twice for only one criminal act. Id. at --- n. 3, 362 A.2d at 230. Although it would appear that Walker controls the present case, we are inclined to hold otherwise for the following reasons.

First, in Walker the defendant objected to his double punishment on direct appeal to this Court as well as the Supreme Court. In the instant case, appellant failed to challenge his sentence at the trial court level, on direct appeal to this Court, or when allocatur was applied for with the Supreme Court. We are satisfied that the judicial interests set forth in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) would best be served by requiring at the minimum that a defendant assert his challenge to an illegal sentence on counseled direct appeal or thereafter be precluded from raising the issue. ^[2] See Commonwealth v. Piper, supra (where a constitutional issue regarding sentence was held waived because not raised in the trial court or the Superior Court).

Second, it was clear in Walker that the indictment set forth but one act upon which the multiple charges were based. Id. at ---, 362 A.2d at 230 n. 3. In the present case, the indictment charging appellant with assault with intent to maim stated that the crime was committed 'on (or about) July 19, 1972.' Similarly, the indictment charging appellant with assault with intent to kill stated that the crime was committed 'on (or about) July 19, 1972.' Furthermore, the Bill of Particulars requested by appellant prior to trial did not indicate whether the two assault charges were the result of one act or not. 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.

Order affirmed.

HOFFMAN, J files a dissenting opinion in which SPAETH, J., joins.

HOFFMAN, Judge (dissenting):

The only issue raised by appellant is whether the lower court had jurisdiction to correct an illegal sentence.

Appellant was sentenced to three and a half to seven years' imprisonment on a charge of assault with intent to kill, 18 P.S. § 4710, ^[1] and to two and a half to five years' imprisonment on a charge of assault with intent to maim, 18 P.S. § 4712. ^[2] The Commonwealth apparently concedes that the two offenses merged for sentencing purposes. The Commonwealth argues that because the issue was not previously litigated on direct appeal, Commonwealth v. McCabe, 229 Pa.Super. 758, 325 A.2d 641 (1974), the issue of the legality of the sentence was waived and cites Commonwealth v. Walker, 234 Pa.Super. 433, 340 A.2d 858 (1975); Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722 (1975); and Commonwealth v. Rispo, 222 Pa.Super. 309, 294 A.2d 792 (1972), in support of that proposition.

Commonwealth v. Walker, supra, has subsequently been reversed by the Supreme Court. Commonwealth v. Walker, --- Pa. ---, 362 A.2d 227 (filed July 6, 1976). In Walker, the Supreme Court disposed of the issue of waiver of an illegal sentence as follows: 'As stated above, only one issue is presently before this Court. Our inquiry is limited to whether the imposition of separate but concurrent prison sentences on the rape conviction and the statutory rape conviction constitute duplicitous sentences in the constitutional sense where both convictions grew out of the same and single act of intercourse. Initially, the Commonwealth contends that this issue has been waived since Walker failed to object to the sentences when imposed. See Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722 (1975). However, unlike the appellant in Tisdale, Walker is not attacking the propriety of being twice convicted for a single act and, as such, is not making a disguised attack on the validity of the convictions underlying the sentences. On the contrary, Walker's challenge is directed exclusively at the lawfulness of the sentences imposed upon these convictions. As such the claim has not been waived and is properly before us. Commonwealth v. Rispo, 222 Pa.Super. 309, 294 A.2d 792 (1972), allocatur refused, 222 Pa.Super. xxxii (1972).' (at 230) (footnotes omitted).

As the Majority concedes, '. . . it would appear that Walker controls.' (At 340). The Majority attempts to distinguish Walker from the instant case as follows: although Walker did not object when the sentence was...