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COMMONWEALTH PENNSYLVANIA v. RAYMOND J. MILLER (09/21/79)

filed: September 21, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
RAYMOND J. MILLER, JR., APPELLANT



No. 1635 October Term, 1978. Appeal from the Judgment of Sentence of the Court of Common Pleas of the 43rd Judicial District, Monroe County Branch, at No. 12 April Term, 1977.

COUNSEL

James P. Gregor, Public Defender, Stroudsburg, for appellant.

Ralph A. Matergia, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

Van der Voort, Wieand and Lipez, JJ. Wieand, J., files a concurring opinion.

Author: Lipez

[ 269 Pa. Super. Page 590]

Appellant was arrested by a police stakeout team, in the act of removing a snowmobile from the shed in which its owner had stored it. He was found guilty, by a jury, of burglary,*fn1 criminal attempt,*fn2 criminal trespass*fn3 and theft by unlawful taking.*fn4 The court below denied appellant's motions in arrest of judgment and for a new trial, and this appeal has been taken.

[ 269 Pa. Super. Page 591]

Appellant's claim that the trial court's charge was insufficiently specific concerning section 3502(d) of the Crimes Code*fn5 has been waived by counsel's failure to make specific objection to the charge given by the trial court before the jury retired as required by Pa.R.Crim.P. 1119(b). Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). The trial court erred in accepting the jury's verdict on all four of the above charges, however, and we must vacate the judgment of sentence and remand the case for resentencing.

Appellant asserts that the jury's verdict was "contrary to the law." Conviction of an attempt to commit a certain crime and of the completed crime is improper, inasmuch as the lesser offense is a necessary ingredient of the greater offense and hence merges into it. Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973).

Since the evidence clearly shows all of the elements of burglary,*fn6 the conviction for criminal attempt was improper.

Criminal trespass, however, is not a lesser offense included within the crime of burglary. Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978). Appellant's conviction on this charge must therefore stand.

As to the theft count, ยง 3502(d), supra, forbids appellant's conviction of burglary "and for the offense which it was his intent to commit after the burglarous entry," here theft. "When the law speaks of a 'conviction,' it means a judgment, and not merely a verdict, which in common parlance is called a 'conviction.'" Smith v. Commonwealth, 14 Serg. & R. (Pa.) 69, 70 (1826), quoted in Commonwealth v. ...


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