Commonwealth v. Miller
Commonwealth v. Miller
Opinion of the Court
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,
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 burglary
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
Judgment of sentence vacated and cause remanded.
. 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).
Concurring Opinion
concurring:
The Court this day holds, in an able opinion by Judge Lipez, that the same entry can support convictions for both burglary
This, in my judgment, is not only unfortunate but contrary to the intent of the Model Penal Code
. 18 Pa.C.S. § 3502(a).
. 18 Pa.C.S. § 3503(a).
. Section 1.07(1) and (4) of the Model Penal Code, although not incorporated into the Pennsylvania Crimes Code, contains significant features as follows: “(1) Prosecution for Multiple Offenses; Limitation on Convictions. When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if: (a) one offense is included in the other, as defined in Subsection (4) of this Section; or (b) one offense consists only of a conspiracy or other form of preparation to commit the other; or (c) inconsistent findings of fact are required to establish the commission of the offense; or (d) the offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or (e) the offense is defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses . . . (4) Conviction of Included Offense Permitted. A defendant may be convicted of an offense included in an offense charged in the indictment (or the information). An offense is so included when: (a) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or (b) it consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or (c) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.”
Reference
- Full Case Name
- COMMONWEALTH of Pennsylvania v. Raymond J. MILLER, Jr., Appellant
- Cited By
- 7 cases
- Status
- Published