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COMMONWEALTH PENNSYLVANIA v. JOHN BUCCI (03/21/80)

submitted: March 21, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN BUCCI, APPELLANT



No. 1216 October Term, 1979, Appeal from Judgment of Sentence in the Court of Common Pleas of Wayne County, Criminal Division, Nos. 2 and 2A, June Term, 1975.

COUNSEL

Nino V. Tinari, Philadelphia, for appellant.

Nicholas Barna, District Attorney, Honesdale, for Commonwealth, appellee.

Hester, Wickersham and Lipez, JJ.

Author: Hester

[ 283 Pa. Super. Page 126]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Wayne County. Following a jury

[ 283 Pa. Super. Page 127]

    trial, appellant was convicted of receiving stolen property and criminal conspiracy. Post verdict motions were denied and a sentence of 2-4 years in jail was imposed. This appeal followed.

The above convictions arose out of the robbery of the First National Bank of Pike County in April, 1975. Testifying for the Commonwealth were the two men who robbed the bank. Their testimony indicated that following the robbery, they met with appellant to discuss a means of getting rid of the stolen money and the guns they had used in the robbery. Agreement was reached that all the money and the guns were to be delivered to appellant, who would then dispose of them and return a portion of the proceeds to the other two. After this action was completed, however, the robbers were arrested, subsequently confessed and implicated appellant.

Appellant first asserts that the convictions of conspiracy to receive stolen property and receiving stolen property cannot stand simultaneously.

In support of this contention, appellant relies on the "Wharton Rule" which states that an agreement between two persons to commit a crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission. See Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975).

The rule, however, rather than being regarded as blackletter law, is looked on merely as a presumption of law, to be applied in absence of legislative intent to the contrary. Iannelli, supra, at 782, 95 S.Ct. at 1292.

In Pennsylvania, we have never followed "Wharton's Rule"; clearly, conspiracy does not merge with the substantive offense. Commonwealth v. Miller, 469 Pa. 24, 364 A.2d 886 (1976); Commonwealth v. ...


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