Commonwealth v. Dieterly
439 A.2d 732
Pa. Super. Ct.
1981
Check Treatment

*1 improper was press to of information divulgence in public print. surface might rele- the trial court are reiterate, the observations

To the instant retrial issue. In but not conclusive vant overwhelming, not was case, guilt the evidence of where and incurable prejudice serious conduct caused prosecutor’s neutral defendants, an absence of any was there conduct, the prosecutor prosecutor’s for explanation court, this writer concludes a direct order of defied not be retried. appellants may A.2d 732 Pennsylvania

COMMONWEALTH DIETERLY, Appellant. Herbert Superior Pennsylvania. Court 5, 1980.

Submitted Dec. 18, 1981.

Filed Dec. *2 Norristown, Defender, Public Assistant King, Arthur J. for appellant. Norris- Attorney, District Williamson, Assistant

Ronald T. Commonwealth, town, appellee. for POPOVICH, JJ. JOHNSON, and BROSKY, Before POPOVICH, Judge: entered Herbert Dieterly, April appellant,

On theft deception1 counts of to six pleas separate of guilty sentenced to later, was month One forgery.2 on to seven years of one consecutive terms of imprisonment not appeal did Appellant convictions. forgery theft and sentence; for however, he did file petition judgment maximum sen a “reduction in the reconsideration seeking and the authorization (59) months” tences ... fifty-nine would for qualify so that appellant sentencing judge *3 The court granted appellant’s the work release program. reconsideration petition. later, filed a appellant and a half

Approximately year Act. The Act of Hearing under the Post Conviction petition 19 1966, 1580, 1 et P.S.A. 25, (1965), seq, P.L. January § was denied petition 1180-1 et seq. (1981-82). Appellant’s § followed. We affirm. without a and this hearing, appeal Act, is an issue Hearing the Post Conviction Under failed to waived and knowingly intelligently if the petitioner extraordinary the existence of raise it and is unable to prove issue. 19 failure to raise the circumstances to his justify sen did not assert at Because 1180-4(b). appellant P.S. § (a) on that appeal or petition, in his reconsideration tencing, for time served in prison he should have been credit given 1977; 9, the court 2, (b) 1977 and August between February date for the below it to a definite specify erred when failed sentence; court, (c) at commencement of appellant’s its reasons for the not on the record sentencing place did 1. 18 Pa.C.S.A. 3922. §

2. 18 Pa.C.S.A. 4101. §

28 Com imposed, e.g., those issues are waived. See Walls, Com 1,

monwealth (1978); v. 481 Pa. 391 A.2d 1064 Morris, v. monwealth 477, (1979).3 Super. 273 Pa. 417 A.2d has nor does the record Additionally, alleged not existence of circumstances. support extraordinary however, alleged also has that court Appellant, him on the forgery below did not have the to sentence power and theft convictions because “the suffered [commonwealth but one crime when the defendant cashed a fraudulently added). (Emphasis at 5. check.” Brief for Appellant, See traditionally has not been applied The waiver doctrine v. Commonwealth allegation. this See sentencing type Walker, Common 227, 323, 329, (1976); A.2d 11, 422 583, Boerner, 281 Pa.Super. 505, 515 n. wealth v. Crocker, 280 Pa.Super. Commonwealth (1980); 588 n. 11 (1980).4 n. 2 470, 2, 818, 421 A.2d 474 n. claim, it is with,

To in order to evaluate begin appellant’s forth in the which were set to examine the facts necessary theft with forgery both charging appellant informations variations, con- the informations With minor by deception. following language: tained the may party, raise Although this Court not raised either Triplett, sponte. question See Commonwealth of waiver sua Klaric, (1977); Pa. 397 A.2d 1212 Walker, Supreme supra, said our Court 4. In Commonwealth grew out “duplicitous where both convictions the issue of sentences” intercourse, The waived. single was not act of of the same Court said: *4 together, must be viewed sentences lawfulness of those “The out but a here, make in the indictment set out where as single the facts Id., 468 rest.” charges in the indictment upon which the act 3, 230 n. 3. n. 362 A.2d at Pa. at 330 In this challenging of his case, also, the lawfulness appellant is claim, necessary Therefore, it is this in order evaluate sentence. document, charging in this case forth in the the facts set to examine forth therein information, set if the facts to determine in order the rested waged a- Hence, appellant has not single upon “a act”. underlying the validity the convictions of disguised sentences, attack on Common be addressed. issue can merits of the and the 330, Walker, Id., A.2d at at 362 wealth v.

29 (A) were: P.C.C. the accused committed “The acts FORGED INSTRUMENT. FORGERY, UTTERING BY DECEPTION and THEFT (3)& (4101)(a)(2) wilful- named ACTOR did In that the above (3922)(a)(l) certain and utter a forge feloniously and ly, knowingly, BANK OF check, of the NORTHEASTERN No. 109 account in ficticious of a false and PENNSYLVANIA [sic] and did with WARNER, the name of R. GEORGE and FEDERAL SAVINGS intent to defraud the FIRST in check, receiving payment and utter said LOAN forge FEDERAL of $290.00, of to the detriment FIRST the sum Number, C-417, LOAN.” (Complaint and SAVINGS added). 1976) (Emphasis determine: case, we must

In instant effect in practical those facts show “whether act, in which case criminal single a defendant committed be may a single merger only there will be there act, in which case than a single or more imposed, for each be imposed and a sentence merger may will be no 451, 455, Buser, Pa.Super. v. 277 act. See Commonwealth v. Jack Commonwealth 1233, (1980); 419 A.2d 1236-1237 son, 271 610, A.2d 613 n. 131, 8, 412 Pa.Super. 137 n. 49, 40, ; Pa.Super. (1979) Belgrave, Commonwealth CERCONE, J., concurring P. 662, (1978) 391 A.2d one has been but facts”). If there dissenting (“unique still injuries several act, criminal even it caused though Commonwealth there has been but one See penalty. 323, 331, 227, (1976). Simi Walker, 468 Pa. all were part been several acts but if there have larly, differed, all, in only degree, if at transaction and single ex rel. there one Commonwealth penalty. be but may 286, 288, 17 A.2d 190 Ashe, 340 Pa. Shaddock v. 30, 457, 228 A.2d Cox, Pa.Super.

See Commonwealth refused, (1967) (acts xxxix allocatur 209 Pa.Super. single part her breasts kissing fondling victim Crocker, intercourse.”) criminal act of supra, 820-1 473-6, at at . (1980) *5 the facts reveals that appel-

A of reading common sense he and distinct acts when lant committed two successive and then authority present- check without signed forged that the check, impression false creating ed the thereby Com- was valid and executed. See properly check presented 578, 417 A.2d 1200 Williams, Pa.Super. monwealth for convic- Therefore, could be sentenced statutes, forgery, from both criminal tions stemming theft by deception.

Order affirmed.

BROSKY, statement. J., concurring files a BROSKY, Judge, concurring: I am majority. by reached I in the result concur Dieterly concerning raised satisfied that the issue sen separate him to the trial court power is before properly theft by deception tences for forgery Walker, this court. Wil in decision Commonwealth that our (1976), indi (1980), clegrly 578, 417 A.2d

liams, were proper. trial court the actions cates that Pennsylvania, COMMONWEALTH KIBLER, Appellant. Donald Pennsylvania. Superior Court 13, 1981. April Argued Jan. Filed