Commonwealth v. Hardrick
407 A.2d 458
Pa. Super. Ct.
1979
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COMMONWEALTH of Pennsylvania v. Nehemiah HARDRICK, Appellant.

Superior Court of Pennsylvania.

July 25, 1979.

Argued April 9, 1979.

407 A.2d 458

Ronald P. Rusinak, Assistant Public Defender, Ebensburg, for appellant.

Gerard D. Long, District Attorney, Ebensburg, for Commonwealth, appellee.

Before CERCONE, President Judge, and WIEAND and HOFFMAN, JJ.

PER CURIAM:

The instant appeal arises from the sentences imposed on appellant for burglary, theft and receiving ‍​​​​​​​​‌​​​​​‌‌​​‌‌‌​‌​​​​​​​​​‌‌​‌‌‌‌​‌‌​‌‌​​​‍stolen goods, all of which grew from an incident which occurred on July 21, 1977.

First, appellant argues that the trial court erred in refusing to order the transcription of the victim‘s testimony from a previous trial which was aborted by the granting of a mistrial motion. As general principle, we agree that appellant was entitled to impeach the credibility of the victim by his former testimony. 1 Henry, Pennsylvania Evidence § 481 (1953). Appellant cites no authority for the proposition that he has a right to use the notes of testimony in this regard. Both appellant and trial counsel were рresent at both the preliminary hearing and the mistrial, and both heard the testimony of the victim, as did the magistrate at the preliminary hearing. Other persons present at the aborted trial could have been subpoenaed had appellant wished to do so. In any event, with regard to three statements the victim made, counsel successfully impeached him. Therefore, we find no error in the court‘s refusal to transcribe the victim‘s testimony from the former trial.

Appellant‘s second argument is groundless, also. This is so because his claim rests on the erroneous assertion that a police officer‘s testimony was culled from his police report аnd, therefore, was past recollection recorded. This argument is not supported by the record оr the court‘s ruling. The testimony manifestly was, at most, past recollection revived.

Appellant‘s third contention is that “the counts of receiving stolen property and theft should have merged with the count of burglary.” With this argument we agree, vacate the judgments of sentence, and remand for resentencing on the burglary count. Crimes Code, 18 Pa.C.S. § 3502(d) (1973). On remаnd the court is directed to comply with the Supreme ‍​​​​​​​​‌​​​​​‌‌​​‌‌‌​‌​​​​​​​​​‌‌​‌‌‌‌​‌‌​‌‌​​​‍Court‘s sentencing requirements as set forth in

;
.

Case remanded for resentencing.

HOFFMAN, J., files a conсurring opinion in which WIEAND, J., joins.

HOFFMAN, Judge, concurring:

I agree with the result reached by the majority but disagree with parts of the majority opiniоn. I agree with the court‘s opinion on the issue of the transcription of appellant‘s first trial.

Appellant‘s second contention is that when a witness testifies on direct examination after being shown a policе report on the stand which refreshes his recollection, opposing counsel is entitled to a copy of the report to cross-examine the witness. Hypothetically speaking, appellant is absolutely correct. See

. However, my review of the record indicates that here the witness never testified from the police report on direct examination. (N.T. 77, 78). Indeed, later in the proceedings it appears that no such written police ‍​​​​​​​​‌​​​​​‌‌​​‌‌‌​‌​​​​​​​​​‌‌​‌‌‌‌​‌‌​‌‌​​​‍report existed. (N.T. 80). Even if the report existed, however, defense counsel is not entitled to a writing used out-of-court to refresh a witness’ memory when the witness does not take the writing onto the stand.
.

Regarding appellant‘s third contention, I would note that the offenses of burglary, theft by unlawful taking, and theft by receiving stolen property, do not “merge.” Offenses merge only when all the elements of one offense are also elements of the second offense and result from the same criminal act.

. Obviously, these three offenses all have different essential elements, precluding the application of the dоctrine of merger here.

However, while theft by unlawful taking and theft by receiving stolen property do not mergе and may be joined in a single indictment,

, judgment of sentence cannot be imposed on both because the crimes are by their own definition inconsistent with each other.
. Moreover, because theft can rise nо higher ‍​​​​​​​​‌​​​​​‌‌​​‌‌‌​‌​​​​​​​​​‌‌​‌‌‌‌​‌‌​‌‌​​​‍than a felony of the third degree, 18 C.P.S.A. § 3903(a), appellant cannot be convicted of both burglary and the thеft which it was his intent to commit, by the statutory mandate of 18 C.P.S.A. § 3502(d). Under these circumstances, we should affirm the burglary conviction but vacate the convictions оf theft by unlawful taking and receiving stolen property.
. Under
, we should also vacate the judgment of sentence оn the burglary conviction and remand for resentencing thereon.

I also agree with the majority‘s direction that re-sentencing on the burglary conviction must comply with

and
.

WIEAND, J., joins in this opinion.

to corroborate this guess.1 Trial counsel were thus able to cross-examine thе witness as thoroughly as the incomplete condition of the police records would allow. No prеjudice resulted to appellant because his counsel ‍​​​​​​​​‌​​​​​‌‌​​‌‌‌​‌​​​​​​​​​‌‌​‌‌‌‌​‌‌​‌‌​​​‍could not inspect the records. The records simply did not contain the information which counsel wished to elicit. If there was error, the error was hаrmless beyond a reasonable doubt.

.

Appellant also contends that his three concurrent sentenсes of 1 to 4 years imprisonment were excessive and illegal and should have been merged. We agree that the counts of Receiving Stolen Property and Theft should have been merged with the count of Burglary for sentencing purposes.

The judgment of sentence is vacated and the case is remanded for resentencing in accordance with this opinion.

Notes

1
Our resolution of this issue makes it unnecessary to determine whether the officer‘s testimony was present recollection refreshed or past recollection recorded.