No. 289 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Wyoming County at No. 11 July Term, 1976
David P. Posatko, Public Defender, Tunkhannock, for appellant.
James E. Davis, District Attorney, Tunkhannock, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., concurs in the result. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 264 Pa. Super. Page 477]
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
[ 264 Pa. Super. Page 478]
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 ...