No. 1549 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Berks County, Criminal Division at No. 76062901.
Robert E. Kerper, Jr., Assistant Public Defender, Reading, for appellant.
J. Michael Morrissey, District Attorney, Reading, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion. Jacobs, former President Judge, did not participate in the consideration or decision in this case.
[ 267 Pa. Super. Page 600]
The instant appeal arises from the judgment of sentence imposed on a verdict of guilty for theft following a jury trial. Appellant's principal contention is that the court erred in accepting what appellant characterizes as an illegal verdict.*fn1 Therefore, appellant claims he is entitled to a new trial. We disagree and will affirm the judgment of sentence.
[ 267 Pa. Super. Page 601]
At trial appellant stood accused of two counts of theft by unlawful taking or disposition,*fn2 and one count of burglary,*fn3 all arising from the same criminal episode. Due to its misconstruction of a provision of the Crimes Code, the court instructed the jury that it could not return a verdict finding appellant guilty of all charges. Rather, the court stated, if the jury were convinced of appellant's guilt beyond a reasonable doubt on all counts, it must select one of the offenses to return the guilty verdict. Not surprisingly, this charge engendered some confusion. Thus, when the jury first returned a verdict of guilty on all charges the court would not accept it, and reiterated its earlier charge in relevant part. Once again, the jury returned a verdict of guilty of burglary and theft according to the verdict slip; but, in announcing the verdict, the foreman only stated the verdict of guilty for theft. A poll of the jury revealed that all twelve jurors agreed that appellant was guilty of theft, but only nine still agreed at that point on the burglary count. Undoubtedly frustrated, the trial judge stated at side bar that he would return the jury for further deliberations or, if appellant wished, "mold" the verdict to find appellant guilty of theft and not guilty of burglary. Appellant's counsel opted for the latter course and the verdict was so entered. Appellant now contends that his being put to this choice was improper and that the verdict as entered was illegal.
The decision in the instant case is controlled by The Crimes Code, 18 Pa.C.S. § 3502(d), the statute the trial court misconstrued, which provides:
" 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."
Although not referring to this section, appellant assumes that a verdict returned by a jury finding appellant guilty of
[ 267 Pa. Super. Page 602]
both burglary and theft by unlawful taking is illegal and "unauthorized." Actually, such a verdict is logically and legally proper, generally speaking. See, e. g., Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941). What the Crimes Code prohibits ...