Appeal from the Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, September Term, 1981, Nos. 2079 and 2080.
Jules Epstein, Assistant Public Defender, Philadelphia, for appellant.
Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Com., appellee.
Spaeth, President Judge, and Cavanaugh, Brosky, Rowley, Wieand, McEwen, Del Sole, Beck and Tamilia, JJ. Brosky, J., files a concurring opinion. Wieand, J., files a concurring opinion in which Cavanaugh, and McEwen, JJ., join. Del Sole, J., files a concurring and dissenting statement. Spaeth, Former President Judge, did not participate in the final decision of this case.
[ 351 Pa. Super. Page 58]
OPINION ANNOUNCING JUDGMENT OF THE COURT
This appeal, from the Judgments of Sentence imposed on appellant, is before the Court en banc to consider (1) whether a criminal defendant's claim that his convictions merge for sentencing purposes is waived by failing to raise the issue in the trial court, and (2) if not, whether appellant's conviction for unauthorized use of an automobile merges into his conviction for theft.
Following a non-jury trial, appellant was found guilty of theft by unlawful taking or disposition,*fn1 theft by receiving stolen property*fn2 and unauthorized use of an automobile.*fn3 Post-verdict motions were filed and denied. On May 10, 1982, appellant was sentenced to 11 1/2 to 23 months imprisonment on the conviction for unauthorized use and five years probation on the convictions for theft.*fn4 The sentences were to be served concurrently. This direct appeal followed. The sole issue raised is whether appellant's conviction
[ 351 Pa. Super. Page 59]
for unauthorized use merges into the convictions for theft.*fn5
Appellant first argues that his failure to raise the merger issue in the trial court did not waive the issue for appellate consideration since he is challenging the legality of his sentences, not the lawfulness of the convictions, and, appellant asserts, an illegal sentence can never be waived. While acknowledging a split of authority in this Court, the Commonwealth argues that appellant has waived his merger claim because he did not raise it in the trial court either at sentencing or in a motion to modify his sentences. The Commonwealth maintains that because appellant's sentence is within the statutory limits and not violative of any specific statutory provision, it would be unjust and inefficient to reward appellant for his failure "to bring [the] alleged error to the attention of the trial judge." Commonwealth's brief at 5.
In Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), our Supreme Court refused to find waiver when appellant alleged that his sentences were duplicitous and violated the double jeopardy clause of the United States Constitution. U.S. Const. amend. V. The Court held that
it is beyond the power of a court imposing sentence to impose multiple sentences on a defendant for a single act; those sentences are unlawful . . . . The lawfulness of those sentences must be viewed together, where, as here, the facts set out in the indictment make out but a single act upon which the charges in the indictment rest.
Id., 468 Pa. at 330 n. 3, 362 A.2d at 230 n. 3 (citations omitted);*fn6 Commonwealth v. Sparrow, 471 Pa. 490, 501-502 n. 7, 370 A.2d 712, 718 n. 7 (1977). Similarly, in
[ 351 Pa. Super. Page 60]
say that the sentences were unlawful on their face. Consequently, we hold that appellant has waived his double punishment claim.
In Commonwealth v. Tolassi, 303 Pa. Super. 177, 449 A.2d 636 (1982) this Court discussed the distinction made in McCabe and enunciated the requirement that in order to avoid a claim of waiver, the alleged illegality of the sentence must somehow appear "on the face of the record." Id., 303 Pa. Superior Ct. at 181, 449 A.2d at 638. However, Tolassi did not involve the merger of sentences; therefore, its statement that an illegal sentence must appear on the face of the record in order to avoid a holding of waiver is dictum. Also, in Commonwealth v. Kull, 267 Pa. Super. 55, 405 A.2d 1300 (1979) (per curiam) this Court found the merger claim had been waived, but then proceeded to address the claim on its merits.
In contrast to McCabe, this Court has refused to find waiver where the underlying facts indicated that the sentences merged; in so doing we did not limit our review to the information or indictment but instead cited Walker for the proposition that imposing multiple sentences is beyond the power of the sentencing court. See Commonwealth v. Franklin, 306 Pa. Super. 422, 430 n. 4, 452 A.2d 797, 801 n. 4 (1982); Commonwealth v. Moore, 300 Pa. Super. 488, 493 n. , 446 A.2d 960, 963 n. (1982); Commonwealth v. Crocker, 280 Pa. Super. 470, 474 n. 2, 421 A.2d 818, 820 n. 2 (1980).*fn7
[ 351 Pa. Super. Page 62]
In the present case, the informations charge that the acts were committed on or about April 27, 1981 in Philadelphia County. The theft and receiving information list the owner or custodian of the property and describe the property as an automobile. The unauthorized use information lists the same owner. As in Commonwealth v. McCabe, supra, it is unclear whether the convictions were "founded upon several criminal acts committed at different times or upon solely one act." Id., 242 Pa. Super., at 417, 364 A.2d at 340. Thus, if we are to be bound by the rationale in McCabe, it would lead us to conclude that appellant has waived his merger claim.
After a careful review of Commonwealth v. Walker, supra, we are satisfied that it does not compel us to limit our review of the record to the information or indictment in determining whether a merger claim has been waived. In Walker the Supreme Court noted: "The lawfulness of those sentences must be viewed together, where, as here, the facts set out in the indictment make out but a single act upon which the charges in the indictment rest." Id., 468 Pa., at 330 n. 3, 362 A.2d at 230 n. 3. However, we do not interpret this language as mandating that our review must be limited to the information or indictment; nor do we read it as limiting the clear holding in Walker that a merger claim is tantamount to a claim that the sentence is unlawful and, as such, cannot be waived. Instead, we interpret the language as making reference only to the case that was then before the Supreme Court. We agree with Judge Hoffman's dissenting opinion in McCabe: "I recognize that the waiver doctrine is grounded in notions of judicial economy, and that review of the record does require additional judicial effort. However, I find no support in Walker for the Majority's distinction. In addition, the Majority cites no cases in support of its proposition -- there are none." Id.,
[ 351 Pa. Super. Page 63242]
Pa. Super., at 420, 364 A.2d at 342. We disapprove the language in McCabe which limits appellate review of a sentencing merger claim to ...