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filed: July 29, 1983.


NO. 2353 OCTOBER TERM, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, at Nos. 964 and 965 September Sessions 1976.


John W. Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Hoffman and Van der Voort, JJ.

Author: Van Der Voort

[ 317 Pa. Super. Page 228]

This case has a fairly long history. Appellant, tried along with three others before a jury, was convicted on November 22, 1976 of theft and criminal conspiracy; he was acquitted of burglary. Following denial of post-trial motions, appellant was sentenced by Judge McDermott to maximum terms of imprisonment, 2 1/2 to 5 years on both the theft and the conspiracy convictions, sentences to run consecutively. Appellant filed an appeal to our Court, at No. 1283 October Term, 1977, which was argued before the whole court. Commonwealth v. Mathis, 269 Pa. Superior Ct. 61, 409 A.2d 63 (1979).

Judge Price, writing for the majority, dismissed appellant's allegations of trial error as being without merit. Nevertheless, he sustained a final contention that "the court below committed error by imposing the maximum prison sentence solely on the basis of the criminal act without any consideration of appellant's character or any inquiry into possible mitigating circumstances." The case was remanded to the lower court for resentencing. Judge Price's opinion cites Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976), as well as Pennsylvania R.Crim.P. 1403(A)(2).

On November 13, 1979, Judge McDermott held a sentencing hearing after which he reimposed sentences of 2 1/2 to 5 years in each case, to run consecutively, as he had before.*fn1 From the new sentence, appellant has again appealed, raising three contentions.

The third contention is that the trial judge committed certain trial errors. Any such alleged errors have either been resolved against appellant in his first appeal before this court, or have been waived by his failure to present them in his first appeal. See Commonwealth v. McCabe, 242 Pa. Superior Ct. 413, 364 A.2d 338 (1976).

[ 317 Pa. Super. Page 229]

Appellant's remaining contentions pertain to the sentences imposed. He first argues that the court erred in sentencing on the charge of theft as if it were a first degree misdemeanor; appellate counsel argues that the Commonwealth failed to prove the value of the goods taken.*fn2 Although Mathis failed to raise this issue in his first appeal, we may nonetheless consider it at this time because illegality of sentence is not a waivable issue. Commonwealth v. Welch, 291 Pa. Superior Ct. 1, 435 A.2d 189 (1981); Commonwealth v. Fral, 248 Pa. Superior Ct. 560, 375 A.2d 383 (1977), rev'd on other grounds, 483 Pa. 602, 397 A.2d 1186 (1979).

The Commonwealth, as well as the appellant, calls our attention to the disposition of the co-defendants' separate appeals. In both Commonwealth v. Howzell, 257 Pa. Superior Ct. 607, 390 A.2d 292 (1978) (allocatur denied 3/22/79); and Commonwealth v. Wilson, 257 Pa. Superior Ct. 621, 390 A.2d 300 (1978), the judgments of sentences were affirmed by per curiam order (memorandum opinions were not filed). Similarly, in Commonwealth v. White, 272 Pa. Superior Ct. 620, 422 A.2d 698 (1979) (allocatur denied 1/3/80), this court affirmed per curiam (memorandum opinion relying as to this issue, on Howzell and Wilson).

In Howzell, the claim was that the prosecution had failed to present evidence of value; and such determination of value was for the jury. Wilson, alleged that a stipulation as to value was improper and, but for such, the crime arose no higher than a third degree misdemeanor. Defendant White argued that the Commonwealth failed to show value in excess of $200 and to allow it to reopen its case to do so was improper. Therefore, he contended that it was improper to impose a sentence for a second degree misdemeanor of 2 1/2 to 5 years.*fn3

[ 317 Pa. Super. Page 230]

To fully appreciate the perplexing situation that we are currently faced with, we must review various sections of the Crimes Code, 18 Pa.C.S. ยง 101 et seq. and follow the procession of this case, as ...

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