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filed: October 3, 1980.


No. 1717 October Term 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, No. 670-77.


Ronald F. O'Driscoll, Assistant Public Defender, Lansdale, for appellant.

James A. Cunningham, Assistant District Attorney, Pottstown, for Commonwealth, appellee.

Price, Spaeth and Lipez, JJ.

Author: Lipez

[ 281 Pa. Super. Page 509]

Appellant was convicted in a jury trial of criminal conspiracy, 18 Pa.C.S. § 903, theft by unlawful taking of movable property 18 Pa.C.S. § 3921(a), theft by receiving stolen goods, 18 Pa.C.S. § 3925, and retail theft, 18 Pa.C.S. § 3929. Post-verdict motions were filed and denied. Concurrent sentences of three to six years for theft of movable property and two-and-a-half to five years for retail theft were imposed. The sentence for criminal conspiracy was three to six years, to run consecutive to the other two sentences.*fn1


Appellant's first contention is that the evidence was insufficient to support the verdicts. Extensive testimony from two Commonwealth witnesses established that on the afternoon of September 4, 1976 appellant and a companion entered the Bailey, Banks & Biddle store in Bala Cynwyd,

[ 281 Pa. Super. Page 510]

Montgomery County. Appellant looked at several valuable diamond rings for sale, and said that he would be back with a $500 check in order to make a deposit on one. A few hours later, appellant returned with his companion and asked to see a diamond ring which sold for about $12,000. While appellant was holding the ring and examining it, the companion slowly walked to the front door of the store and opened it. Carrying the ring, appellant then suddenly bolted for the door, and both he and his companion fled. The thorough identification testimony from the eyewitnesses was corroborated by expert testimony concerning the handprints appellant had left on the store counter, which had been wiped clean shortly before he and his companion arrived the second time. Viewed in the light most favorable to the Commonwealth as verdict winner, the evidence was clearly sufficient for the jury to infer guilt beyond a reasonable doubt for criminal conspiracy, theft by unlawful taking, and retail theft.*fn2


Appellant also claims he is entitled to discharge because the court below erred in denying his motion to dismiss all charges under Pennsylvania Rule of Criminal Procedure 1100, for failure to commence trial within 180 days of the filing of the complaint. The complaint was filed on September 10, 1976. Trial commenced 279 days later on June 17, 1977. However, Rule 1100(d) provides in pertinent part:

"In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceeding as results from:

(1) the unavailability of the defendant . . . ."

Appellant was still at large when the complaint was filed, and a warrant was issued for his arrest. The Commonwealth is entitled to the unavailability exclusion if it

[ 281 Pa. Super. Page 511]

    establishes by a preponderance of the evidence that police acted with due diligence in executing the arrest warrant. Commonwealth v. Mitchell, 472 Pa. 553, 562, 372 A.2d 826, 830 (1977). A warrant was delivered to Philadelphia police on September 15, 1976 and appellant was arrested 135 days later on January 28, 1977. The transcript of the hearing on the motion to dismiss provides overwhelming support for the lower court's conclusion that the Commonwealth proved the police's due diligence, because extensive efforts by the police to locate appellant and serve the warrant were repeatedly frustrated by appellant's use of numerous aliases and addresses of record.*fn3 Exclusion of this 135-day period alone reduces the time in bringing appellant to trial from 279 days to 144, well within the 180-day limit of Rule 1100(a)(2). Accordingly, the lower court properly denied appellant's motion to dismiss under Rule 1100.*fn4

[ 281 Pa. Super. Page 512]


Appellant contends that he could not properly be convicted of theft by unlawful taking, receiving stolen goods or conspiracy, and that the trial judge erred in charging the jury that the appellant could be convicted of these crimes. Appellant's argument is that the legislature intended that thefts from retail establishments should be governed solely by the specific provisions on retail theft in 18 Pa.C.S. § 3929. This claim could have been raised, but was not, in a pre-trial motion to quash the informations charging theft by unlawful taking, receiving stolen goods and conspiracy. Therefore the trial judge properly found the claim waived by failure to raise it pre-trial. Commonwealth v. Williams, 252 Pa. Super. 587, 384 A.2d 935 (1978).


Appellant claims that his being sentenced for retail theft, theft by unlawful taking and criminal conspiracy violated: (A) the rules of statutory construction; and (B) the doctrine of merger and appellant's double jeopardy rights.


Appellant's statutory construction argument is that because the provisions of the retail theft statute are specific, they were intended by the legislature to be the exclusive provisions under which someone committing a theft from a retail establishment could be sentenced. This argument raises, under the rubric of sentencing, precisely the same attack on the validity of the underlying convictions as the claim we previously found waived in part III under Commonwealth v. Williams, supra, for failure to raise it in a

[ 281 Pa. Super. Page 513]

    pre-trial motion to quash the informations charging crimes other than retail theft.*fn5 Appellant cannot avoid this waiver of a non-jurisdictional issue*fn6 merely by relabelling it as an attack on the legality of the sentence. Commonwealth v. Montgomery, 485 Pa. 110, 115, 401 A.2d 318, 320 (1979).


Since all of appellant's sentences were for non-capital crimes, there arises the problem, unique to Pennsylvania,*fn7 of whether the state double jeopardy clause, Pa.Const., art. I, § 10, is applicable. In cases spanning more than a century, our Supreme Court held that the Pennsylvania double jeopardy clause applies only to capital offenses. E. g., Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382 (1964); Commonwealth v. Simpson, 310 Pa. 380, 165 A. 498 (1933); McCreary v. Commonwealth, 29 Pa. 323 (1857). However, six years ago in Commonwealth v. Brown, 455 Pa. 274, 278, 314 A.2d 506, 509 (1974), the Court found a violation of both the federal and state double jeopardy clauses in

[ 281 Pa. Super. Page 514]

    a case clearly involving only a non-capital offense.*fn8 Without referring to Brown, the Court three years ago in Commonwealth v. Sparrow, 471 Pa. 490, 501-02, n.7., 370 A.2d 712, 718, n.7 (1977), apparently returned to the McCreary-Simpson-Baker holding that Pennsylvania double jeopardy only applied to capital cases. Last year, without referring to McCreary, Simpson, Baker or Sparrow, the Court in Commonwealth v. Tome, 484 Pa. 261, 275, 398 A.2d 1369, 1377 (1979), reached a contrary result by finding a state as well as federal double jeopardy violation with respect to a non-capital offense,*fn9 relying on Commonwealth v. Brown, supra. While these and other cases have produced some confusion,*fn10 we consider the issue to have been resolved in

[ 281 Pa. Super. Page 515]

    favor of applying the Pennsylvania double jeopardy clause to both capital and non-capital offenses, under the Court's most recent holdings in Commonwealth v. Tome, supra, and Commonwealth v. Mitchell, 488 Pa. 75, 78 & n.2, 410 A.2d 1232, 1233 & n.2 (1980). Accordingly we shall consider appellant's sentencing claims under the Pennsylvania double jeopardy clause, as well as merger doctrine and federal double jeopardy.*fn11

[ 281 Pa. Super. Page 516]

With respect to criminal conspiracy, both appellant's merger and double jeopardy claims must fail. The Crimes Code in no way changed the settled rule that criminal conspiracy does not merge into the completed offense which is the object of the conspiracy. Commonwealth v. Page 517} Miller, 469 Pa. 24, 28, 364 A.2d 886, 887 (1976). It is also settled that conviction for both conspiracy and the completed offense does not violate the double jeopardy provisions of either the federal or state constitution. Pinkerton v. United States, 328 U.S. 640, 643-44, 66 S.Ct. 1180, 1181-1182, 90 L.Ed. 1489 (1946) (Federal double jeopardy); Commonwealth v. Corcoran, 78 Pa. Super. 430, 433-36 (1922) (Pennsylvania double jeopardy).*fn12

[ 281 Pa. Super. Page 518]

We agree with appellant, however, that he could not receive concurrent sentences for both theft by unlawful taking and retail theft, since both convictions arose out of the single act of theft of the diamond ring.*fn13 Once proof of the theft by unlawful taking was complete, so was proof of the retail theft, and vice-versa. It is therefore unquestionable that the two crimes merged for sentencing purposes, and appellant could be sentenced for only one.*fn14 Commonwealth Page 518} v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973); Commonwealth v. Jackson, 271 Pa. Super. 131, 412 A.2d 610 (1979); cf. Commonwealth v. Lawton, 272 Pa. Super. 40, 48-49, 414 A.2d 658, 662-63 (1979); see also Commonwealth v. Buser, 277 Pa. Super. 451, 458-460, 419 A.2d 1233, 1236-1238 (1980).

The only question remaining is for which crime appellant could be sentenced. We believe it is clear from Commonwealth v. Nelson, supra, that when crimes merge for sentencing purposes, the one for which a defendant may be sentenced is the most serious crime, i. e., the one to which the legislature attached the greatest possible maximum penalty. See also Commonwealth ex rel. Shaddock v. Ashe, 340 Pa. 286, 288-89, 17 A.2d 190, 190-91 (1940); Commonwealth ex rel. Russo v. Ashe, 293 Pa. 322, 324, 142 A. 317, 318 (1928); Commonwealth ex rel. Holinko v. Ashe, 290 Pa. 534, 535, 139 A. 197 (1927). In Nelson, the defendant's single act resulted in his conviction of: (1) assault and battery; (2) assault and battery in resisting arrest; and (3) unlawfully resisting an officer in making an arrest. Even though crimes (2) and (3) involved additional elements which would seem to make them worse than crime (1), under the applicable provisions of the 1939 Penal Code, crimes (2) and (3) each had a maximum penalty of one year, while crime (1) had a maximum of two years.*fn15 The Court therefore held that the defendant could only be sentenced for crime (1), because that was the crime which the legislature had established as the "most serious" by attaching to it the maximum possible

[ 281 Pa. Super. Page 519]

    penalty. See Commonwealth v. Brown, 259 Pa. Super. 502, 504, 393 A.2d 938, 939 (1978).

When the issue is analyzed in terms of double jeopardy, Commonwealth v. Walker, 468 Pa. 323, 333-34, 362 A.2d 227, 232 (1976), demonstrates that the same test applies. In Walker, the defendant had been convicted of both rape and statutory rape for a single act of intercourse. The Court held that the federal double jeopardy clause required that the defendant could be sentenced for only one crime. That crime was rape, which the legislative scheme had established as more serious than the statutory rape by setting a greater maximum penalty for the rape. That determination is clearly the province of the legislature. Cf. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); see also Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).*fn16

While no case has dealt with this issue under Pennsylvania's double jeopardy clause, we believe the reasoning of Nelson, with respect to merger, and Walker, regarding federal double jeopardy, applies equally to Pennsylvania double jeopardy. Both the merger doctrine and the federal and state double jeopardy clauses are aimed at preventing the unfairness of punishing a defendant twice for what is essentially the same offense. See Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1873); Harman v. Commonwealth, 12 Pa.S. & R. 68 (1824). This purpose of fairness is fully accomplished by allowing the defendant to be sentenced only

[ 281 Pa. Super. Page 520]

    for the crime with the greatest maximum penalty.*fn17 Harman v. Commonwealth, supra; cf. Commonwealth v. Jones, 274 Pa. Super. 162, 169, n.2, 418 A.2d 346, 349, n.2 (1980) (dictum).

In this case, the theft by unlawful taking was a felony of the third degree with a maximum penalty of seven years, see 18 Pa. C.S. §§ 1103, 3903, while the retail theft was a misdemeanor of the first degree, carrying a maximum penalty of five years. See 18 Pa.C.S. §§ 1104, 3929(b)(4). We will therefore vacate the judgment of sentence for retail theft. There is no need to remand for resentencing on the

[ 281 Pa. Super. Page 521]

    other convictions, since it is clear from the sentencing transcript that the trial judge was not influenced by the retail theft conviction in imposing the other sentences. Commonwealth v. Jellots, 277 Pa. Super. 358, 362, 419 A.2d 1184, 1186 (1980).

Judgments of sentence for theft by unlawful taking and criminal conspiracy affirmed; judgment of sentence for retail theft vacated.

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