Michael A. Filingo, Assistant Public Defender, Bangor, for appellant.
Daniel G. Spengler, Assistant District Attorney, for Com., appellee.
Brosky, Del Sole and Hoffman, JJ. Brosky, J., files a concurring opinion. Hoffman, J., files a concurring and dissenting opinion.
[ 372 Pa. Super. Page 284]
This is an appeal from the judgment of sentence of May 22, 1987, in which appellant was sentenced for two consecutive terms of one and one-half years to four years for two counts of Theft by Deception, 18 P.S. § 3922. Appellant raises four issues for our consideration in this appeal. Prior to addressing them, a brief recital of the facts is in order.
The Information charged that on August 18, 1986, Appellant obtained $6,000.00 from John Short. To secure the money, Appellant presented Mr. Short with a forged letter from Dr. John Oliver Nelson, in which Nelson guaranteed to repay the loan. On the same day Appellant obtained an additional $18,000.00 from Mr. Short, promising to invest the funds in the purchase of a home. He told Mr. Short that he intended to sell it quickly for an immediate profit and repay him his investment plus a split of the profit. Needless to say, no portion of the money was repaid.
This appeal involves a challenge to the legality of the sentence as well as the discretionary aspect of the sentence. The question of whether the two counts of theft should have merged for sentencing purposes, relates to the legal aspects. A two-pronged test for determining the merger of offenses has been adopted by our appellate courts:
[t]o determine whether merger should occur, a court must first determine whether the separate statutory offenses arose out of the same criminal act, transaction or episode. When courts decide under the merger doctrine that two crimes "necessarily involve" one another, it does not always mean that all the elements of one crime are included in the other. It means that on the facts of the case the two crimes were so intimately bound up in the same wrongful act that as a practical matter, proof of one
[ 372 Pa. Super. Page 285]
crime necessarily proves the other, so that they must be treated as the same offense. Commonwealth v. Williams, 344 Pa. Super. 108, 127, 496 A.2d 31, 40 
The test for merger, as stated above, is a "flexible fact-based tool for determining how many offenses against the Commonwealth have actually been committed . . . . (The) question of merger will often turn on an appraisal of the precise facts of the case." Commonwealth v. Williams, supra, 344 Pa. Superior Ct. at 143, 496 A.2d at 50.
Commonwealth v. Taylor, 362 Pa. Super. 408, 524 A.2d 942 (1987).
Appellant contends that the two counts of Theft are each part of a single continuous act since the victim relied on the forged note, which attested to guarantee the loan, before giving him both sums of money. Appellant overlooks that the crucial factor herein is that he approached the victim on two separate occasions and received money both times. Of course the elements of both offenses are the same, however, the trial court did not err in ...