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COMMONWEALTH PENNSYLVANIA v. THOMAS PADDEN (05/10/84)

submitted: May 10, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
THOMAS PADDEN, APPELLANT



No. 17 Philadelphia, 1984, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Lackawanna County, No. 80 Cr. 451, 452, 453, 454, 457, 458, A & B

COUNSEL

Thomas P. Kennedy, Assistant Public Defender, Scranton, for appellant.

James J. Walker, Assistant District Attorney, Scranton, for Commonwealth, appellee.

Wickersham, Wieand and Hoffman, JJ.

Author: Wieand

[ 335 Pa. Super. Page 53]

In this appeal from an order denying a request to vacate sentences alleged to be illegally duplicitous, the issue is whether separate sentences may validly be imposed for the several offenses committed while a burglar attempts to flee from the scene of his crime.

Following a burglary in the City of Scranton, Thomas Padden stole a pickup truck and attempted to elude pursuing police. During a high speed chase covering more than twenty miles, he ran through three road blocks, twice rammed a Scranton police vehicle occupied by Sergeant Saccetti and Patrolman Witkowski, forcing it off the road, and at least three times struck, bumped and rammed a Dickson City police vehicle occupied by Harold Nudelman and engaged in maintaining a rolling road block intended to slow appellant's vehicle and protect innocent motorists. Appellant was convicted, inter alia, of burglary and of committing three separate aggravated assaults upon Saccetti, Witkowski and Nudelman. He was sentenced to prison for not less than three nor more than six years for burglary and was given consecutive sentences of not less than one nor more than three years for each aggravated assault. The total sentence to be served, therefore, was not

[ 335 Pa. Super. Page 54]

    less than six nor more than fifteen years. A motion to modify the sentence was denied. On direct appeal, the judgment of sentence was affirmed. See: Commonwealth v. Padden, 314 Pa. Super. 209, 460 A.2d 840 (1983). Thereafter, Padden filed pro se a petition to vacate the sentences which he alleged to be illegally duplicitous. The order from which the present appeal has been taken was entered in response to that petition.

The opinion of a panel of this Court, filed in appellant's direct appeal, demonstrates that the alleged illegality of appellant's sentences was not then considered. Because an illegal sentence cannot be waived, appellant's failure to raise it on direct appeal does not preclude our present consideration of the issue. Commonwealth v. Mitchell, 319 Pa. Super. 170, 178, 465 A.2d 1284, 1287-1288 (1983); Commonwealth v. Welch, 291 Pa. Super. 1, 3, 435 A.2d 189, 189 (1981). See: Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Zaengle, 332 Pa. Super. 137, 480 A.2d 1224 (1984); Commonwealth v. Bossche, 324 Pa. Super. 1, 471 A.2d 93 (1984).

In Commonwealth v. Walker, supra, the Supreme Court said:

Analysis of duplicitous sentence questions has traditionally revolved around the concept of injury to the sovereign, in this case the Commonwealth. One of the purposes of the criminal law is to punish offenses against the Commonwealth, as defined by the Legislature, and it follows that, "[t]he criminal prosecution is for the injury done to the Commonwealth, and not for the injury done to the individual who may, if entitled, obtain redress through a civil action. Where there is but one act of cause of injury, or death of a number of persons, there is but one injury to the Commonwealth, but where the acts or causes are separate, they are separate injuries to the peace and dignity of the ...


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