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COMMONWEALTH PENNSYLVANIA v. ANTHONY GALLAGHER (03/29/85)

filed: March 29, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
ANTHONY GALLAGHER, APPELLANT



No. 2164 Philadelphia 1982, No. 2756 Philadelphia 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division - Criminal Section, Philadelphia County, No. 2550-2552, February Term 1981 and No. 81-02-2549, 2553-55.

COUNSEL

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

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

Rowley, Montemuro and Lipez, JJ.

Author: Lipez

[ 341 Pa. Super. Page 155]

In a non-jury trial, defendant was convicted of involuntary deviate sexual intercourse, attempted rape, and possession of an instrument of crime. With new counsel, defendant filed post-verdict motions which were denied. Sentence was imposed, and with a second new counsel, defendant took this appeal alleging: (1) that defendant was erroneously convicted and sentenced for two inchoate offenses for conduct designed to commit or culminate in the commission of the same crime; (2) that trial counsel was ineffective when he told the trial judge that defendant made no statement upon arrest (thus sabotaging defendant's claim of innocent cooperation with the police) and that post-verdict counsel was ineffective in failing to raise this claim below; and (3) that trial counsel was ineffective for failing to object to the introduction of prior crimes evidence. We affirm.

Defendant first claims that he was erroneously convicted and sentenced for two inchoate offenses -- attempted rape and possessing the instrument of a crime -- for conduct designed to commit or culminate in the commission of the

[ 341 Pa. Super. Page 156]

    same crime. Though defendant did not raise this issue in the court below, "a question as to the legality of sentence is never waived despite the fact that it was not raised in the court below." Commonwealth v. Von Aczel, 295 Pa. Super 242, 246, 441 A.2d 750, 752 (1981).

A defendant may not be convicted of more than one inchoate offense designed to commit or to culminate in the commission of the same crime. 18 Pa.C.S. § 906. In Commonwealth v. Crocker, 256 Pa. Super. 63, 389 A.2d 601 (1978), the court held that defendant could not be convicted and sentenced for both criminal attempt and possessing an instrument of crime because defendant's conduct was designed to culminate in the commission of only one crime. In Commonwealth v. Hassine, 340 Pa. Super. 318, 368, 490 A.2d 438, 464 (1985), the court stated that the purpose of Section 906 was "to eliminate the conviction for more than one offense in the preparation to commit the objective, that is, where the offenses were designed to culminate in the commission of only one crime." (emphasis in original). See also Commonwealth v. Zappacosta, 265 Pa. Super. 71, 401 A.2d 805 (1979).

The evidence in this case indicates that defendant possessed the knife (the instrument of crime) with the intent of committing the crime of rape, and later with the intent of committing the crime of involuntary deviate sexual intercourse. Thus, defendant possessed the knife with the intent to commit two distinct crimes. Therefore, to be convicted and sentenced for attempted rape and possessing the instruments of crime in this case does not violate the "same crime" rule of 18 Pa.C.S. § 906.

Defendant next argues that trial counsel was ineffective because he told the judge as factfinder that defendant made no statement upon being arrested, and that this sabotaged his defense of innocent cooperation with the police. Defendant also claims that post-verdict counsel ...


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