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COMMONWEALTH PENNSYLVANIA v. THEODORE HARRIS (04/12/79)

SUPERIOR COURT OF PENNSYLVANIA


submitted: April 12, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
THEODORE HARRIS, APPELLANT

No. 1346 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Cambria County at Nos. C-670, A, B, C-1977.

COUNSEL

Michael L. Stibich, Assistant Public Defender, Ebensburg, for appellant.

D. Gerard Long, District Attorney, Ebensburg, for Commonwealth, appellee.

Price, Hester and Montgomery, JJ.

Author: Per Curiam

[ 269 Pa. Super. Page 42]

Appellant Theodore Harris was convicted by a jury of burglary, theft, and receiving stolen property*fn1 in connection with a looting incident occurring shortly after the Johnstown flood in July, 1977. Concurrent sentences of two to four years imprisonment were imposed as to each count. This direct appeal followed.

Appellant contends the court erred in 1) failing to grant a defense motion to transcribe testimony from the first trial in this case, which ended in a mistrial; and 2) failing to allow counsel to inspect a police report. We have considered and rejected these identical arguments in an appeal taken by appellant's co-defendant, Wilbert Cooper, Commonwealth v. Cooper, 268 Pa. Super. 99, 407 A.2d 456 (Opinion by Montgomery, J., 1979).

We agree, however, with appellant's contention, and the Commonwealth concedes, that the sentences imposed were illegal. 18 Pa.C.S.A. ยง 3502(d) provides:

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

[ 269 Pa. Super. Page 43]

Thus, it is clear that the counts of theft and receiving stolen property should have merged with the count of burglary for sentencing purposes.*fn2 See, e. g., Commonwealth v. Price, 258 Pa. Super. 625, 391 A.2d 696 (1978) (Per Curiam). We therefore vacate the judgments of sentence and remand for resentencing on the burglary count alone. On remand, the court is directed to comply with the Supreme Court's sentencing requirements as set forth in Commonwealth v. Kostka, 475 Pa. 85, 379 A.2d 884 (1977); Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).

It is so ordered.


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