filed: December 18, 1981.
COMMONWEALTH OF PENNSYLVANIA
HERBERT DIETERLY, APPELLANT
No. 1603 October 1979, Appeal from the Order of the Court of Common Pleas of Montgomery County, Pennsylvania, Criminal Division denying Post Conviction Hearing Act Relief at No. 4100-76, 4101-76, 4133-76, 4722-76, 97-77, 98-77.
Arthur J. King, Assistant Public Defender, Norristown, for appellant.
Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Brosky, Johnson, and Popovich, JJ. Brosky, J., files a concurring statement.
[ 294 Pa. Super. Page 27]
On April 27, 1977, appellant, Herbert Dieterly, entered pleas of guilty to six separate counts of theft by deception*fn1 and forgery.*fn2 One month later, appellant was sentenced to consecutive terms of imprisonment of one to seven years on the theft and forgery convictions. Appellant did not appeal the judgment of sentence; however, he did file a petition for reconsideration seeking a "reduction in the maximum sentences . . . to fifty-nine (59) months" and the authorization of the sentencing judge so that appellant would qualify for the work release program. The court granted appellant's reconsideration petition.
Approximately a year and a half later, appellant filed a petition under the Post Conviction Hearing Act. The Act of January 25, 1966, P.L. (1965), 1580, § 1 et seq., 19 P.S.A. § 1180-1 et seq. (1981-82). Appellant's petition was denied without a hearing, and this appeal followed. We affirm.
Under the Post Conviction Hearing Act, an issue is waived if the petitioner knowingly and intelligently failed to raise it and is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue. 19 P.S. § 1180-4(b). Because appellant did not assert at sentencing, in his reconsideration petition, or on appeal that (a) he should have been given credit for time served in prison between February 2, 1977 and August 9, 1977; (b) the court below erred when it failed to specify a definite date for the commencement of appellant's sentence; and (c) the court, at sentencing did not place on the record its reasons for the
[ 294 Pa. Super. Page 28]
sentence imposed, those issues are waived. See e.g., Commonwealth v. Walls, 481 Pa. 1, 391 A.2d 1064 (1978); Commonwealth v. Morris, 273 Pa. Super. 477, 417 A.2d 748 (1979).*fn3 Additionally, appellant has not alleged nor does the record support the existence of extraordinary circumstances.
Appellant, however, also has alleged that the court below did not have the power to sentence him on the forgery and theft convictions because "the [c]ommonwealth suffered but one crime when the defendant fraudulently cashed a check." See Brief for Appellant, at 5. (Emphasis added). The waiver doctrine has not been applied traditionally to this type of sentencing allegation. See Commonwealth v. Walker, 468 Pa. 323, 329, 362 A.2d 227, 230 (1976); Commonwealth v. Boerner, 281 Pa. Super. 505, 515 n. 11, 422 A.2d 583, 588 n. 11 (1980); Commonwealth v. Crocker, 280 Pa. Super. 470, 474 n. 2, 421 A.2d 818, 820 n. 2 (1980).*fn4
To begin with, in order to evaluate appellant's claim, it is necessary to examine the facts which were set forth in the informations charging appellant with both forgery and theft by deception. With minor variations, the informations contained the following language:
[ 294 Pa. Super. Page 29]
"The acts committed by the accused were: (A) P.C.C. FORGERY, UTTERING FORGED INSTRUMENT. (4101)(a)(2) & (3) and THEFT BY DECEPTION (3922)(a)(1) In that the above named ACTOR did wilfully, knowingly, and feloniously forge and utter a certain check, No. 109 of the NORTHEASTERN BANK OF PENNSYLVANIA of a false and ficticious [sic] account in the name of GEORGE R. WARNER, and did with the intent to defraud the FIRST FEDERAL SAVINGS and LOAN forge and utter said check, receiving in payment the sum of $290.00, to the detriment of FIRST FEDERAL SAVINGS and LOAN." (Complaint Number, C-417, 1976) (Emphasis added).
In the instant case, we must determine:
"whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be merger and only a single sentence may be imposed, or more than a single act, in which case there will be no merger and a sentence may be imposed for each act. See Commonwealth v. Buser, 277 Pa. Super. 451, 455, 419 A.2d 1233, 1236-1237 (1980); Commonwealth v. Jackson, 271 Pa. Super. 131, 137 n. 8, 412 A.2d 610, 613 n. 8 (1979); Commonwealth v. Belgrave, 258 Pa. Super. 40, 49, 391 A.2d 662, 667 (1978) CERCONE, P. J., concurring and dissenting ("unique facts"). If there has been but one criminal act, even though it caused several injuries still there has been but one penalty. See Commonwealth v. Walker, 468 Pa. 323, 331, 362 A.2d 227, 231 (1976). Similarly, if there have been several acts but all were part of a single transaction and differed, if at all, only in degree, there may be but one penalty. Commonwealth ex rel. Shaddock v. Ashe, 340 Pa. 286, 288, 17 A.2d 190 (1940). See Commonwealth v. Cox, 209 Pa. Super. 457, 228 A.2d 30, allocatur refused, 209 Pa. Super. xxxix (1967) (acts of kissing victim and fondling her breasts part of single criminal act of intercourse.") Commonwealth v. Crocker, supra, 280 Pa. Super. 470, at 473-6, 421 A.2d 818, at 820-1 (1980).
[ 294 Pa. Super. Page 30]
A common sense reading of the facts reveals that appellant committed two successive and distinct acts when he signed the forged check without authority and then presented the check, thereby creating a false impression that the check presented was valid and properly executed. See Commonwealth v. Williams, 273 Pa. Super. 578, 417 A.2d 1200 (1980). Therefore, appellant could be sentenced for convictions stemming from both criminal statutes, forgery, and theft by deception.
BROSKY, Judge, concurring:
I concur in the result reached by the majority. I am satisfied that the issue raised by Dieterly concerning the power of the trial court to sentence him to separate sentences for forgery and theft by deception is properly before this court. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), and that our decision in Commonwealth v. Williams, 273 Pa. Super. 578, 417 A.2d 1200 (1980), clearly indicates that the actions of the trial court were proper.