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11/19/97 COMMONWEALTH PENNSYLVANIA v. LEON SEWELL

November 19, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
LEON SEWELL, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Allegheny County, Criminal Division, at No. CC 9600565. Before CASHMAN, J.

Before Kelly, Hudock, and Brosky, JJ. Opinion BY Brosky, J.

The opinion of the court was delivered by: Brosky

OPINION BY BROSKY, J.

Filed November 19, 1997

Leon Sewell appeals from the judgment of sentence of the trial court following his bench trial convictions of three counts of harassment. *fn1

On October 31, 1995, at approximately 10:30-11:00 p.m., Emily Johnson, her common-law husband Edward Downer and their son Eddie returned to their home at 915 North Lang Avenue in Pittsburgh. As they pulled the car up to their house they noticed appellant standing on the sidewalk in front of the house. Both Johnson and Downer recognized appellant as the man who, three days earlier, stood on their lawn and threw a rock and broke a window in the house; appellant then attempted to enter the house through the broken window. N.T., 11/25/96, at 15. Appellant was arrested regarding the earlier incident. *fn2

As Johnson parked the car in front of the house, appellant turned and ran into an alley located approximately 1-1/2 blocks from the house. Johnson and Downer then carried their invalid son into the house and locked the door to the house. They then observed appellant and another person emerge from the alley and stare at the Johnson-Downer house. Johnson then heard several gunshots and called the police; the police arrived and arrested appellant.

Appellant was charged with loitering and prowling at nighttime. Appellant proceeded to a bench trial before the Honorable David R. Cash man. Judge Cashman acquitted appellant of loitering and prowling at nighttime, but convicted him of three counts of summary harassment. *fn3

Appellant claims on appeal that, "Because harassment has an element not necessary for a conviction of loitering and prowling at nighttime, harassment is not a lesser included offense of loitering and prowling at nighttime." Appellant's Brief at 9. Under the facts of the instant case, we are constrained to reverse the judgment of sentence of the trial court.

"Upon indictment for a particular crime, a defendant may be convicted of a lesser offense included within that crime." Commonwealth v. Pemberth, 339 Pa. Super. 428, , 489 A.2d 235, 236 (1985). As long as conviction is for a lesser-included offense, the defendant will have been put on notice of the charges against him and can adequately prepare a defense. Id. at , 489 A.2d 237.

Our Court stated in Commonwealth v. Blackwell, 436 Pa. Super. 294, 647 A.2d 915 (1994),

A lesser-included offense is a crime having elements of which are a necessary subcomponent of elements of another crime, the greater offense. The elements in the lesser-included offense are all contained in the greater offense; however, the greater offense contains one or more elements not contained in the lesser-included offense. [Citations omitted.]

Id. at , 647 A.2d ...


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