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COMMONWEALTH PENNSYLVANIA v. ROBERT P. MCCABE (09/27/76)

decided: September 27, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT P. MCCABE, APPELLANT



Appeal from the Order of the Court of Common Pleas of Delaware County at No. 616 September Term, 1972, Criminal. No. 254 October Term, 1976.

COUNSEL

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

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

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins.

Author: Jacobs

[ 242 Pa. Super. Page 414]

"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

[ 242 Pa. Super. Page 415]

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.*fn1 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

[ 242 Pa. Super. Page 416]

    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, Pa. , 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.

[ 242 Pa. Super. Page 417]

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.*fn2 See Page ...


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