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COMMONWEALTH PENNSYLVANIA VS LARRY MCDANIEL (05/09/79)

SUPERIOR COURT OF PENNSYLVANIA


May 9, 1979

COMMONWEALTH OF PENNSYLVANIA VS LARRY MCDANIEL, APPELLANT

No. 57 March Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of York County, at No. 689 Criminal Action, 1977.

Before Van Der Voort, Watkins, And Lipez, JJ.

Per Curiam:

The conviction of theft is affirmed; however, the case is remanded to the lower court for correction of sentence.

MEMORANDUM IN SUPPORT OF PER CURIAM ORDER:

Appellant first argues that his theft conviction should be reversed because the lower court permitted the introduction of improper rebuttal testimony concerning stolen property not mentioned in the indictment. Appellant "opened the door" to such testimony, after which the admission of the testimony was within the discretion of the trial court. Commonwealth v. Hickman, 453 Pa. 427 (1973).

Appellant argues that admission of evidence of a prior conviction was error because the lower court failed to consider certain factors. Appellant's attorney objected at trial, but only on one specific ground which is not raised on appeal. The issue is therefore waived. Commonwealth v. Carr, 459 Pa. 262 (1974).

Under the facts of this case, the trial court did not err in charging the jury on receiving stolen property. Evidence had been presented from which the jury could have found appellant guilty of theft or receiving stolen property.

There is no merit to appellant's argument that the trial judge's remarks at the time of sentencing indicated that the sentence was "based upon invalid reasons." The trial judge properly considered appellant's prior criminal record. There is nothing to indicate that the court considered charges which had been disposed of favorably to appellant.

We do find some confusion in the sentence which was actually imposed by the lower court. The confusion may be nothing more than clerical error; however, we will not speculate on what was actually intended by the lower court. As it is worded now, the sentence of "not lw sentence of "not less than eleven and a half (11 1/2) nor more than three (3) years" is improper. The case must be remanded for correction of sentence.

The conviction of theft is affirmed.

19790509

© 1998 VersusLaw Inc.



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