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COMMONWEALTH PENNSYLVANIA v. RICHARD W. WHETSTINE (07/26/85)

filed: July 26, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD W. WHETSTINE, APPELLANT



Appeal from the Judgment of Sentence December 2, 1983 in the Court of Common Pleas of Blair County, Criminal No. 796 of 1980. No. 01538 Pittsburgh 1983.

COUNSEL

Harold Gondelman, Pittsburgh, for appellant.

Ellen L. Cohen, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

Wieand, Cirillo and Johnson, JJ.

Author: Cirillo

[ 344 Pa. Super. Page 250]

Richard Whetstine appeals from the judgment of sentence entered December 2, 1983 in the Court of Common Pleas of Blair County. He alleges that his speedy trial rights were violated and that he was illegally and improperly sentenced.

Whetstine first argues that two extensions of time to commence trial were improperly granted to the Commonwealth under Pa.R.Crim.P. 1100(c). Whetstine's trial counsel specifically in writing and orally on the record waived any challenge to these extensions before the court granted them. Whetstine contends, however, that counsel was ineffective for doing so.

The Supreme Court has held that when defense counsel fails to object to a Commonwealth petition for an extension of time under Rule 1100, the defendant will not be discharged after trial unless his underlying constitutional right to a speedy trial has been denied. Commonwealth v. Crowley, 502 Pa. 393, 466 A.2d 1009 (1983). Although this statement in Crowley was dictum, it has been followed by the Superior Court. See Commonwealth v. Wells, 322 Pa. Super. 380, 469 A.2d 672 (1983); see also Commonwealth v. Lafty, 333 Pa. Super. 428, 482 A.2d 643 (1984) (Spaeth, P.J., concurring); cf. Commonwealth v. Knupp, 340 Pa. Super. 304, 490 A.2d 1 (1985) (Opinion by Johnson, J.) (issue not reached) (petition for allocatur filed). Whetstine does not maintain that there was a speedy trial violation

[ 344 Pa. Super. Page 251]

    of constitutional dimension, nor does the record support such a claim. Cf. Commonwealth v. Terfinko, 504 Pa. 385, 474 A.2d 275 (1984) (finding no violation of constitutional right to speedy trial). Thus, we dismiss this issue as meritless.

Whetstine next contends that the multiple sentences imposed on him should merge. The jury that heard the case found him guilty of burglary, criminal attempt (involuntary deviate sexual intercourse), indecent assault, indecent exposure, simple assault, terroristic threats, and disorderly conduct; the court imposed a separate sentence on each count.

The doctrine of merger of offenses for sentencing insures that separate sentences are not imposed for what in practical effect was a single criminal act. Commonwealth v. Crocker, 280 Pa. Super. 470, 421 A.2d 818 (1980). In deciding whether offenses merge, the question is whether the offenses charged "necessarily involve" one another, or whether any additional facts are needed to prove additional offenses once the primary offense has been proven. See Commonwealth v. Ayala, 492 Pa. 418, 424 A.2d 1260 (1981). In deciding merger questions, we focus not only on the similarity of the elements of the crimes, but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed but a single criminal act. Commonwealth v. Boettcher, 313 Pa. Super. 194, 459 A.2d 806 (1983).

Additionally, we note that analysis of merger claims traditionally has revolved around the concept of injury to the sovereign; in order to support the imposition of more than one sentence, it must be found that the defendant's conduct constituted more than one injury to the Commonwealth. Commonwealth v. Sanders, 339 Pa. Super. 373, 489 A.2d 207 (1985); Commonwealth v. Padden, 335 Pa. Super. 51, 483 A.2d 950 (1984); cf. 18 Pa.C.S. ยง 110(1)(iii)(A) (multiple convictions permitted when ...


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