concurring:
I agree with the result reached by the majority but disagree with parts of the majority opinion.
*107I 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 police 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 Commonwealth v. Allen, 220 Pa.Super. 403, 404-05, 289 A.2d 476, 477-78 (1972). 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. Commonwealth v. Samuels, 235 Pa.Super. 192, 197-98, 340 A.2d 880, 882-83 (1975).
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. Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207 (1977). Obviously, these three offenses all have different essential elements, precluding the application of the doctrine of merger here.
However, while theft by unlawful taking and theft by receiving stolen property do not merge and may be joined in a single indictment, Commonwealth v. Bailey, 250 Pa.Super. 402, 378 A.2d 998 (1977), judgment of sentence cannot be imposed on both because the crimes are by their own definition inconsistent with each other. Commonwealth v. Simmons, 233 Pa.Super. 547, 559, 336 A.2d 624, 631 (1975). Moreover, because theft can rise no higher than a felony of the third degree, 18 C.P.S.A. § 3903(a), appellant cannot be convicted of both burglary and the theft which it was his *108intent 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 of theft by unlawful taking and receiving stolen property. Commonwealth v. Simmons, supra, 233 Pa.Super. at 559-61, 336 A.2d at 631-32. Under Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972), we should also vacate the judgment of sentence on 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 Kostka and Riggins.
WIEAND, J., joins in this opinion.