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COMMONWEALTH PENNSYLVANIA v. WARREN HENDERSON (02/16/83)

SUPERIOR COURT OF PENNSYLVANIA


submitted: February 16, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
WARREN HENDERSON, APPELLANT

No. 936 Philadelphia 1981, No. 1936 Philadelphia 1981, Appeal from the Judgment of Sentence of March 31, 1981, and from the Order dated June 22, 1981, Court of Common Pleas of Philadelphia County, Criminal Division at No. 653-655 February Term, 1980.

COUNSEL

Edward V. Schulgen, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Johnson and Montemuro, JJ.

Author: Per Curiam

[ 314 Pa. Super. Page 37]

Appellant was found guilty of robbery,*fn1 possessing an instrument of crime*fn2 and theft by unlawful taking*fn3 following a non-jury trial. Post-verdict motions were timely filed, heard and denied, after which appellant received consecutive sentences of two and one-half to five years incarceration for possessing an instrument of crime, two to four years followed by ten years probation for robbery, and six months to one year for theft.

Appellant advances two distinct issues on this consolidated appeal. First, he argues that the trial judge abused his discretion when, after the conclusion of all testimony, he expressed his desire to have the case thoroughly tried and asked that the police officer, who entered the apartment where the robbery/theft occurred, testify.*fn4 We find this contention to be without merit. Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963); Commonwealth v. Bready, 189 Pa. Super. 427, 150 A.2d 156 (1959).

Second, appellant contests his having been sentenced on separate counts of robbery and theft where both offenses arose out of the same incident and, therefore, merged.*fn5 The trial court acknowledged the correctness of this contention in its opinion filed December 28, 1981, but correctly understood it was without authority to modify the sentence while the case remained on appeal. The Commonwealth, in its brief to this court, agrees that the theft conviction merged with the robbery conviction for purposes of sentencing.

[ 314 Pa. Super. Page 38]

Our review of the opinion filed by the trial judge pursuant to Pa.R.Crim.P. 1925(a) together with the sentencing transcript of March 31, 1981 persuades us that the imposition of the one sentence could not have influenced the other. A remand would serve no useful purpose. See Commonwealth v. Brazzle, 272 Pa. Super. 438, 416 A.2d 536 (1979).

Judgment of sentence on the theft count vacated and other judgments of sentence affirmed.


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