Commonwealth v. McCabe

364 A.2d 338, 242 Pa. Super. 413, 1976 Pa. Super. LEXIS 2072

• Court: Superior Court of Pennsylvania
• Decided: September 27, 1976
• Docket: 254
• Status: Published

Opinions

JACOBS, Judge:

“On July 19, 1972, Daniel Centrone, a sixteen year old youth, received extensive injuries as a result of a vicious beating and stabbing administered by a group of men belonging to the Warlocks Motorcycle Club in the Del-croft Shopping Center, Folcroft, Delaware County, Pennsylvania. As a result of this beating the victim sustained severe cerebral contusions, brain stem contusions, resultant brain injury, rigidity of arms and legs, stab wounds of the back, cardiac arrest and remained in a coma for three weeks after the beating. The youth subsequently spent twenty-two weeks at Fitzgerald Mercy Hospital and six weeks at the Magee Rehabilitation Center.” Opinion of Lower Court at 1. Appellant, Robert P. McCabe, was one of three persons charged with the crime. After a trial by jury, appellant was found guilty of assault with intent to maim, assault with intent to kill, and conspiracy.¹ The following sentences were then imposed: 2y¿ to 5 years of imprisonment for assault with intent to maim, 3y¿ to 7 years imprisonment for assault with intent to kill, and 1 to 2 years of imprisonment for conspiracy. The sentences were directed to run consecutively. Appellant’s judgment of sentence was affirmed by this Court and allocatur was refused by our Supreme Court. Commonwealth v. McCabe, 229 Pa. Super. 758, 325 A.2d 641, allocatur refused, 229 Pa.Super. xxxvii (1974).

Subsequently, appellant filed with the lower court a petition for the correction of his sentence. He argued to the lower court that his conviction for assault with intent to maim merged into his conviction for assault with intent to kill and, therefore, he was being punished twice for the same act by being sentenced separately for each crime. However, it is admitted by appellant that the double punishment argument was not raised at the trial court level nor raised on appeal to this Court or the Supreme Court. It is also evident that the various sentences appellant received for the crimes of which he was found guilty were individually within the statutory limits and not unlawful per se. Generally, when one offense merges into another only one punishment may then be imposed. See Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973); Commonwealth ex rel. Tokarchik v. Claudy, 174 Pa.Super. 509, 102 A.2d 207, allocatur refused, 174 Pa.Super. xxvii (1954). Nevertheless, on several occasions we have held that where the sentence is lawful per se (within the statutory limits) and no objection is made in the lower court to the resulting double punishment, we will consider the question as having been waived, Commonwealth v. Tisdale, 233 Pa.Super. 77, 334 A.2d 722, allocatur refused, 233 Pa.Super. xxxv (1975); Commonwealth v. Rispo, 222 Pa.Super. 309, 294 A.2d 792, allocatur refused, 222 Pa.Super. xxxii (1972). See also Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974). Recently, however, our Supreme Court has held that a challenge to a sentence may be made on appeal even though no objection was entered in the court below. Commonwealth v. Walker, - Pa. -, 362 A.2d 227 (filed July 6, 1976). In that case, defendant objected on direct appeal to the imposition of two sentences of imprisonment for the commission of one criminal act. Because “the facts set out in the indictment [made] out but a single act upon which the charges in the indictment” were based, the Supreme Court held that it was unlawful per se for the defendant to be sentenced twice for only one criminal act. Id. at-n. 3, 362 A.2d at 230. Although it would appear that Walker controls the present case, we are inclined to hold otherwise for the following reasons.

First, in Walker the defendant objected to his double punishment on direct appeal to this Court as well as the Supreme Court. In the instant case, appellant failed to challenge his sentence at the trial court level, on direct appeal to this Court, or when allocatur was applied for with the Supreme Court. We are satisfied that the judicial interests set forth in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) would best be served by requiring at the minimum that a defendant assert his challenge to an illegal sentence on counseled direct appeal or thereafter be precluded from raising the issue.² See Commonwealth v. Piper, supra (where a constitutional issue regarding sentence was held waived because not raised in the trial court or the Superior Court). Second, it was clear in Walker that the indictment set forth but one act upon which the multiple charges were based. Id. at-, 362 A.2d at 230 n. 3. In the present case, the indictment charging appellant with assault with intent to maim stated that the crime was committed “on (or about) July 19, 1972.” Similarly, the indictment charging appellant with assault with intent to kill stated that the crime was committed “on (or about) July 19, 1972.” Furthermore, the Bill of Particulars requested by appellant prior to trial did not indicate whether the two assault charges were the result of one act or not. Under these circumstances, a complete review of the trial testimony would be necessary to determine whether appellant’s conviction for assault with intent to maim and assault with intent to kill were founded upon several criminal acts committed at different times or upon solely one act.

We are reluctant to again consider the totality of evidence introduced against appellant in this case. When the indictments do not indicate that the sentences imposed were based on one act or several acts, we cannot say that the sentences were unlawful on their face. Consequently, we hold that appellant has waived his double punishment claim.

Order affirmed.

HOFFMAN, J., files a dissenting opinion in which Spaeth, J., joins.

1 . Appellant was prosecuted under the old Penal Code: Act of June 24, 1939, P.L. 872, § 712, 18 P.S. § 4712 (assault with intent to maim); § 710, 18 P.S. § 4710 (assault with intent to kill); § 302, 18 P.S. § 4302 (conspiracy).

2 . This is not to say that a defendant may not request relief by way of a claim of ineffective assitance of counsel when irregularities in the proceedings in the lower court have not been properly raised by his trial attorney. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).