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COMMONWEALTH PENNSYLVANIA v. JOYCE BYRON (06/08/83)

submitted: June 8, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JOYCE BYRON, A/K/A BYRON JOYCE, APPELLANT



NO. 651 PITTSBURGH, 1981, Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal No. 8008352

COUNSEL

Mitchell A. Kaufman, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Cercone, President Judge, and Spaeth and Hester, JJ.

Author: Spaeth

[ 319 Pa. Super. Page 2]

This is an appeal from judgments of sentence for burglary and indecent assault. Appellant was convicted of forcibly entering the home of the victim, a 60 year old woman, and assaulting her. The trial court sentenced appellant to 1 1/2 to 5 years imprisonment for burglary, and 2 years probation for assault, the sentences to be served consecutively. We agree with appellant's argument that he should not have been sentenced for both offenses. We therefore

[ 319 Pa. Super. Page 3]

    vacate the judgment of sentence for indecent assault as the lesser of the two sentences. Appellant makes other arguments, but these lack merit. The judgment of sentence for burglary is therefore affirmed.

1

When before the trial court, appellant failed to question the legality of his sentence. This failure, however, did not result in his waiving the argument he now makes. See, Commonwealth v. Paige, 287 Pa. Super. 133, 142 n. 3, 429 A.2d 1135, 1140 n. 3 (1981) (objections to an illegal sentence not waived by failing to raise them in post-trial proceedings); Commonwealth v. Everett, 277 Pa. Super. 323, 419 A.2d 793 (1980) (same).

Section 3502(d) of the Crimes Code provides:

(d) Multiple convictions. -- A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarous entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree. 18 Pa.C.S.A. § 3502(d).

It was permissible for the trial judge, who tried appellant without a jury, to find appellant guilty of both burglary and indecent assault. However, since indecent assault is not a felony of the first or second degree but a misdemeanor, 18 Pa.C.S.A. § 3126, it was not permissible for the judge to convict appellant of both offenses, which is what the judge did by sentencing appellant for both ...


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