Commonwealth v. Walker ( 1975 )

Concurring and Dissenting Opinion by

Hoffman, J.:

I agree with the holdings of the Majority that the Commonwealth introduced sufficient evidence to prove that appellant was over 16 at the time of the offense charged, that there was no abuse of discretion by the trial court in limiting cross-examination of the Commonwealth’s witness, and that the chain of custody of the vaginal smears was established, and thus properly admitted into evidence. I believe, however, that the case should be remanded for resentencing.

Appellant was' indicted on September 19, 1973, and charged with rape, statutory rape, violation of the liquor laws, and corrupting the morals of a minor. On February 6, 1974, a jury found the appellant guilty on all charges. Thereafter, on June 4, 1974, appellant was sentenced to concurrent five to ten year sentences on the first two bills, three to twelve months on the third bill, and one to three years’ imprisonment on the final bill, to run concurrently with the five to ten year sentence. Appellant contends that the court erroneously gave him two sentences for rape and statutory rape.

Initially, I agree that there is no objection to the sentence on record. The question is thus whether failure to object to an illegal sentence constitutes a waiver of that claim. In Commonwealth v. Rispo, 222 Pa. Superior Ct. 309, 294 A.2d 792 (1972), our Court made the following distinction between those claims relating to sentencing which can be waived and those which cannot: “The .cases cited by defendant, which hold non-waivable an attack upon the lawfulness of a sentence, are not in point; they are cases involving sentences unlawful per se. The present appeal, on the other hand, presents a different situation: We are asked to determine the propriety of defendant’s being thrice convicted on related facts, not the per se lawfulness of the resulting sentences. This necessarily entails a factual examination of the trial record. As defendant’s counsel conceded at the hearing, the claim turns upon the evidence. Such a claim, unlike a pure unlawfulness-of-sentence claim, is precisely the type of claim that is subject to waiver.” 222 Pa. Superior Ct. at 312, 294 A.2d at 794. (Emphasis added). Rispo is cited as authority in Commonwealth v. Tisdale, 233 Pa. Superior Ct. 77, 334 A.2d 722 (1975), for the proposition that a difference exists “between sentences that are unlawful per se and those that are imposed from invalid convictions.” Id. at 81, 334 A.2d at 724. (Emphasis added). The following discussion makes clear that review of the sentence in the instant case does not require an examination of the record. In addition, there is no question concerning the validity of the convictions, but only concerning the validity of separate sentences on two convictions arising from the same act.

In Commonwealth v. Cox, 209 Pa. Superior Ct. 457, 228 A.2d 30 (1967), habeas corpus denied sub nom. United States ex rel. Cox v. Russell, 283 F. Supp. 171 (E.D. Pa. 1968), this Court rejected the appellant’s claim that he could not be convicted of both common law and statutory rape. We noted that “one unlawful act may constitute more than one crime.” 209 Pa. Superior Ct. at 467, 228 A.2d at 35. The Court, however, held that although a defendant could be convicted of both charges, “. . . the sentence imposed can be no greater than would have been proper had the conviction been one count only.” Id. at 467, n.2, 228 A.2d at 35, n.2. The Court did not give application to that rule because “[a]s long as a defendant is not punished twice for the same act he has no cause of complaint. . . . Sentence having been suspended in indictment No. 69, this assignment of error is overruled.” Id. In the instant case, the appellant was found guilty of rape and statutory rape, both convictions based on one act of intercourse. Therefore, although he may be convicted of both charges, he cannot be punished twice for the same act.

The Majority believes that because appellant received concurrent sentences on the two charges he is not being punished twice for the same act. This argument, however, was specifically rejected in Commonwealth v. Wolfe, 220 Pa. Superior Ct. 415, 420-421, 289 A.2d 153, 155-156 (1972) : “The Commonwealth argues, however, that since appellant received concurrent sentences on these two counts, he has suffered no prejudice. This argument is based on the ‘concurrent sentence doctrine’, a doctrine never accepted in Pennsylvania and recently discredited by the United States Supreme Court. In Benton v. Maryland, 395 U.S. 784 (1969), the Supreme Court rejected the ‘concurrent sentence doctrine’: ‘[o]ne can search . . . without finding any satisfactory explanation for the concurrent sentence doctrine. . . .

“ ‘. . . as in Sibron [Sibron v. New York, 392 U.S. 40 (1968)], both of petitioner’s convictions might some day be used to impeach his character if put in issue at a future trial. Although petitioner could explain that both convictions arose out of the same transaction, a jury might not be able to appreciate this subtlety.’

“. . . The possibility of future prejudice to the appellant is a sufficient basis upon which to vacate an improperly imposed concurrent sentence.”

Because concurrent sentence was improperly imposed and because prejudice can arise from such a sentence, I would remand the instant case for resentencing.