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COMMONWEALTH PENNSYLVANIA v. DAVID P. GRAVES (05/09/86)

decided: May 9, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID P. GRAVES, PETITIONER



Petition for Allowance of Appeal from the Order of the Superior Court entered October 5, 1984 at No. 912 Pittsburgh, 1981, remanding the case to the Court of Common Pleas of Cambria County, Criminal Division, at No. C-0564 (a), (c), (d) 1980 (Judgment of Sentence of July 30, 1981) for resentencing.

McDermott, J., dissents from the decision to review this matter. Zappala, J., files a dissenting statement.

Author: Per Curiam

[ 510 Pa. Page 423]

Opinion AND ORDER

AND NOW, May 5, 1986, the Petition for Allowance of appeal is hereby granted, the order of Superior Court dated October 5, 1984, remanding the record to the Court of Common Pleas of Cambria County for resentencing is vacated insofar as it applies to David P. Graves, the resentencing

[ 510 Pa. Page 424]

    order of the Court of Common Pleas of Cambria County dated April 2, 1985, is stricken for lack of jurisdiction in that court and its original sentencing orders of July 20, 1981, are reinstated.

Although the two inchoate crimes for which David P. Graves was convicted and sentenced appear to have arisen out of the same incident, the record demonstrates that each was directed at a different end. The conspiracy was for the purpose of furthering an assault with several co-defendants upon three police officers; the solicitation to murder had as its object the death of one of the officers. Section 906 of the Crimes Code, 18 Pa.C.S. ยง 906, states: "[a] person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime." It thus provides that inchoate crimes merge only when directed to the commission of the same crime, not merely because they arise out of the same incident. The language in Commonwealth v. Martin, 316 Pa. Super.Ct. 190, 462 A.2d 859 (1983), is disapproved to the extent that it may be read to imply that a person may not be convicted for two inchoate crimes merely because they arise out of the same incident. The statute bars such convictions only when those inchoate crimes are "designed to commit or to culminate in the commission of the same crime." Section 906 of the Crimes Code.

For these reasons the original sentences imposed by the Court of Common Pleas must be reinstated.

Disposition

AND NOW, May 5, 1986, the Petition for Allowance of appeal is hereby granted, the order of Superior Court dated October 5, 1984, remanding the record to the Court of Common Pleas of Cambria County for resentencing is vacated insofar as it applies to David P. Graves, the resentencing order of the Court of Common Pleas of Cambria County dated April 2, 1985, is stricken for lack of jurisdiction in that court and its original sentencing orders of July 20, 1981, are reinstated.

ZAPPALA, Justice, dissenting.

I dissent. Although I agree with the result of the order, the ill-considered action of the ...


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