Commonwealth v. Miller

LIPEZ, Judge:

Appellant was arrested by a police stakeout team, in the act of removing a snowmobile from the shed in which its owner had stored it. He was found guilty, by a jury, of burglary,1 criminal attempt,2 criminal trespass3 and theft by unlawful taking.4 The court below denied appellant’s motions in arrest of judgment and for a new trial, and this appeal has been taken.

*591Appellant’s claim that the trial court’s charge was insufficiently specific concerning section 3502(d) of the Crimes Code5 has been waived by counsel’s failure to make specific objection to the charge given by the trial court before the jury retired as required by Pa.R.Crim.P. 1119(b). Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). The trial court erred in accepting the jury’s verdict on all four of the above charges, however, and we must vacate the judgment of sentence and remand the case for resentencing.

Appellant asserts that the jury’s verdict was “contrary to the law.” Conviction of an attempt to commit a certain crime and of the completed crime is improper, inasmuch as the lesser offense is a necessary ingredient of the greater offense and hence merges into it. Commonwealth v. Nelson, 452 Pa. 275, 305 A.2d 369 (1973).

Since the evidence clearly shows all of the elements of burglary6, the conviction for criminal attempt was improper.

Criminal trespass, however, is not a lesser offense included within the crime of burglary. Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978). Appellant’s conviction on this charge must therefore stand.

As to the theft count, § 3502(d), supra, forbids appellant’s conviction of burglary “and for the offense which it was his intent to commit after the burglarious entry,” here theft. “When the law speaks of a ‘conviction,’ it means a judgment, and not merely a verdict, which in common parlance is called a ‘conviction.’ ” Smith v. Commonwealth, 14 Serg. & R. (Pa.) 69, 70 (1826), quoted in Commonwealth v. Black, 267 Pa.Super. 598, 407 A.2d 403 (1979). The trial court erred in ordering the jury’s verdict recorded *592exactly as rendered. The remedy is vacation of the judgment of sentence on the illegal convictions. See Commonwealth v. Price, 258 Pa.Super. 625, 391 A.2d 696 (1978); Commonwealth v. Wilks, 250 Pa.Super. 182, 378 A.2d 887 (1977); Commonwealth v. Simmons, 233 Pa.Super. 547, 336 A.2d 624 (1975). Where it is clear that the illegal conviction had no effect on the actual sentence, we have not remanded for resentencing. See Commonwealth v. Senyszyn, 266 Pa.Super. 480, 405 A.2d 535 (1979); Commonwealth v. Fant, 263 Pa.Super. 533, 398 A.2d 704 (1979); Commonwealth v. Grant, 235 Pa.Super. 357, 340 A.2d 509 (1975). See also McGee v. United States, 462 F.2d 243, 246 n. 5 and accompanying text (2d Cir. 1972). We must remand the instant case, however, because all of the charges were made on the same information, and because the court below, during the sentencing hearing, gave no indication whatever of the allocation of the prison sentence among the four charges. The extent to which the illegal convictions influenced the sentence is thus not clear. We therefore vacate the judgment of sentence and remand the cause, with instructions to the court below to resentence upon the verdict of guilty of burglary and criminal trespass only. See Commonwealth v. Lockhart, 223 Pa.Super. 60, 296 A.2d 883 (1972).

Judgment of sentence vacated and cause remanded.

WIEAND, J., files a concurring opinion.

. 18 Pa.C.S. § 3502(a).

. 18 Pa.C.S. § 901(a).

. 18 Pa.C.S. § 3503(a).

. 18 Pa.C.S. § 3921(a).

. Section 3502(d) provides:

A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarious entry or for an attempt to commit that offense, unless the additional offense constitutes a felony of the first or second degree.

. The evidence showed that appellant broke the lock on the door of the shed in which the snowmobiles were stored and entered with the intent to steal one or more of them. See 18 Pa.C.S. § 3502(a).