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COMMONWEALTH PENNSYLVANIA v. NEHEMIAH HARDRICK (07/25/79)

decided: July 25, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
NEHEMIAH HARDRICK, APPELLANT



No. 1044 April Term, Appeal from Judgments of Sentence in the Court of Common Pleas of Cambria County, Pennsylvania, Criminal Division at Nos. C-672 (a), (b), and (c) of 1977.

COUNSEL

Ronald P. Rusinak, Assistant Public Defender, Ebensburg, for appellant.

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

Cercone, President Judge, and Wieand and Hoffman, JJ. Hoffman, J., files a concurring opinion in which Wieand, J., joins.

Author: Per Curiam

[ 268 Pa. Super. Page 105]

The instant appeal arises from the sentences imposed on appellant for burglary, theft and receiving stolen goods, all of which grew from an incident which occurred on July 21, 1977.

First, appellant argues that the trial court erred in refusing to order the transcription of the victim's testimony from a previous trial which was aborted by the granting of a

[ 268 Pa. Super. Page 106]

    mistrial motion. As general principle, we agree that appellant was entitled to impeach the credibility of the victim by his former testimony. 1 Henry, Pennsylvania Evidence § 481 (1953). Appellant cites no authority for the proposition that he has a right to use the notes of testimony in this regard. Both appellant and trial counsel were present at both the preliminary hearing and the mistrial, and both heard the testimony of the victim, as did the magistrate at the preliminary hearing. Other persons present at the aborted trial could have been subpoenaed had appellant wished to do so. In any event, with regard to three statements the victim made, counsel successfully impeached him. Therefore, we find no error in the court's refusal to transcribe the victim's testimony from the former trial.

Appellant's second argument is groundless, also. This is so because his claim rests on the erroneous assertion that a police officer's testimony was culled from his police report and, therefore, was past recollection recorded. This argument is not supported by the record or the court's ruling. The testimony manifestly was, at most, past recollection revived.

Appellant's third contention is that "the counts of receiving stolen property and theft should have merged with the count of burglary." With this argument we agree, vacate the judgments of sentence, and remand for resentencing on the burglary count. Crimes Code, 18 Pa.C.S. § 3502(d) (1973). 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).

Case remanded for ...


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