MONTGOMERY COUNTY LAW REPORTER
©2007 MBA 48
Commonwealth v. Hirschbuhl
144-389
[144 M.C.L.R., Part II
Commonwealth v. Hirschbuhl
CRIMINAL LAW
Suppression of Evidence
Habeas Corpus
Conspiracy
JUVENILE LAW
After a three day jury trial, defendant was found guilty of two counts of robbery in violation of
18 Pa.C.S. § 3701 (a)(1), one count each of reckless endangerment in violation of 18 Pa.C.S. § 2705,
theft receiving stolen property, and conspiracy to rob, recklessly endanger, theft, receiving stolen property,
and using an automobile without authorization, all in violation of Pa.C.S. § 903 (a)(1). The court sentenced
defendant to a mandatory five to ten years in prison for robbery, twenty years consecutive probation for conspiracy
to commit robbery, and two years concurrent probation for each of the crimes of reckless endangerment,
and conspiracy to make unauthorized use of an automobile. The court held that the remaining charges of which
defendant had been convicted merged for sentencing purposes. Hirschbuhl was appointed counsel, by the
court, to assist him in his appeal. In the required statement of matters complained of on appeal, the defendant
raised four issues, none of which had been previously raised. Upon review, the court vacated the separate
two-year probationary sentences imposed for reckless endangerment and conspiracy to make unauthorized use
of an automobile, believing them to have merged for sentencing purposes, but further held that the remaining
sentence imposed should be affirmed.
1. “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”
Pa.R.A.P. 302(a).
2. Pennsylvania’s appellate courts have established that the issue of certification of a juvenile to stand
trial as an adult is a jurisdictional issue, and as such cannot be waived.
3.
A court’s jurisdiction over criminal charges can never be waived.
4. The Juvenile Act provides, “This chapter [the Act] shall apply exclusively to the following:
(1) Proceedings in which a child is alleged to be delinquent . . . .” 42 Pa.C.S. § 6303(a)(1) (emphasis added).
The Act defines “child” as, inter alia, an individual who is under the age of eighteen, id. § 6302, and “delinquent
child” as “[a] child ten years of age or older whom the court has found to have committed a delinquent act and
is in need of treatment, supervision or rehabilitation,” id. (emphasis added). “Delinquent act” is defined generally
as an act designated a crime under law. Id. However,
(2) The term shall not include [inter alia:]
(i) The crime of murder.
(ii) Any of the following prohibited conduct where the child was
15 years of age or older at the time of the alleged conduct and a
deadly weapon as defined in 18 Pa.C.S. § 2301 (relating to definitions) was used during the commission of the offense, which, if
committed by an adult, would be classified as:
....
(D) Robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) . .
..
....
(I) An attempt, conspiracy or solicitation to commit
murder or any of [the listed] crimes, as provided in
[18 Pa.C.S. §§ 901-903 (relating to criminal attempt,
solicitation, and conspiracy, respectively)].
5. As a challenge to the legality of the sentence, in other words, the Court’s power to impose the
sentence, a claim of merger is not waived and may be raised by the appellate court sua sponte even if not raised
by the appellant.
6. However, a claim that convictions merged for sentencing purposes is a challenge to the legality of
sentence.
7. Furthermore, the Crimes Code provides, “A person may not be convicted of more than one of the
inchoate crimes of criminal attempt, criminal solicitation, or criminal conspiracy for conduct designed to commit
or to culminate in the commission of the same crime.” 18 Pa. C.S. § 906.
(Appealed to Superior Court September 1, 2006.)
Copyright © Montgomery Bar Association 2007
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389 2007]
Commonwealth v. Hirschbuhl
©2007 MBA
C. P. Montgomery County, Criminal Division. No. 4238-05. Commonwealth of Pennsylvania v.
Justin Hirschbuhl.
Mary MacNeil Killinger, Deputy District Attorney, Appellate Division, for Commonwealth of
Pennsylvania.
Francis M. Walsh, for Justin Hirschbuhl.
SMYTH, J., June 18, 2007
Factual Background
The spree began after midnight on May 9, 2005. Outside a hotel near the Philadelphia airport,
Justin Hirschbuhl, wearing a dark hooded garment pulled down over his face, and a taller,
handgun-brandishing cohort, David Watson, hijacked a rental car from Liane Davis. (Trial by Jury
at 13-31 (Mar. 13, 2006).) In the bargain, the robbers made off with money, papers, and valuables
that Ms. Davis had left in the car. (See id. at 2.) The hijackers sped off on a joyride that would span
three counties.
The following night in Montgomery County, near the Philadelphia city line, Watson aggressively
pulled the stolen car up close to Philip Schwartz, Steven Iskrant, and Remy Kurland, who were out
taking a midnight stroll together. (See id. at 82-85; id. at 3-9, 21, 30 (Mar. 14, 2006).) A second car
sped up and slammed on its brakes behind Watson’s. (Id. at 3-6, 19, 26-29.) Watson got out and
went to talk to the operator of the second car. (See id. at 6-7, 29, 43-44.) Watson then got back in the
car he was driving, and both vehicles sped away. (Id. at 7, 19, 29-30.) A few minutes later,
Watson’s (stolen) car came back. (See id. at 31.) In a well-executed maneuver, Watson drove the car
into an intersection and blocked the three walkers’ path. (Id. at 9-10.) He jumped out pointing a
handgun and demanded money from the trio. (Id. at 10-12, 31-33, 45, 79; id. at 88-89 (Mar. 13, 2006).)
A shorter, dark-hooded accomplice, later identified by Ms. Kurland as Hirschbuhl, alighted from the
car to help collect the victims’ cash and valuables. (See id. at 33-39, 79, 81 (Mar. 14, 2006).)
When one of the robbers remarked that Schwartz was “holding out” on them, Watson pistol-whipped
Schwartz, inflicting a facial gash that required thirteen stitches. (Id. at 34-35; id. at 90-93 (Mar. 13, 2006.).)
After toying with the idea of stealing Schwartz’s car, the robbers made a hasty getaway in the hijacked
car in which they had come. (Id. at 37 (Mar. 14, 2006).)
A few hours later, police in Delaware County, who were on the lookout for the car and its armed
occupant(s), encountered it in the drive-in lane of a fast-food restaurant. (Id. at 59-62, 64-65.)
Officers effected a stop by pulling their vehicles in front and in back of the car. (Id. at 60-61.)
Its driver, Watson, responded by throwing it into reverse and crashing into the police vehicle behind
him. (Id. at 61.) Watson then got out and resisted attempts to subdue him. (Id. at 61-62.)
Police arrested the car’s occupants, Watson, Hirschbuhl, and a front-seat passenger later identified
as codefendant Marques Singleton. (See id. at 62-63, 65, 79-81, 85, 90, 98-99; Criminal Docket at 3;
Presentence Investigation at 2.)
Police discovered that the three men lived within a quarter mile of each other near the junction
of Philadelphia, Montgomery, and Delaware counties. (Trial by Jury at 84-86 (Mar. 14, 2006).)
Police obtained and executed warrants to search Watson’s and Hirschbuhl’s homes. (Id. at 69-70, 85.)
The search of Watson’s residence turned up the weapon used in the stickups. (Id. at 70-73.) A search
of Hirschbuhl’s house came up empty. (Id. at 73-75.)
Reviewing a photo array, Liane Davis identified Hirschbuhl as one of her assailants. (See id. at
31-33 (Mar. 13, 2006); id. at 90-92 (Mar. 14, 2006).) Remy Kurland, after initially telling police she
couldn’t identify the robbers, also picked Hirschbuhl’s photo from an array. (See id. at 37-42, 50-57,
81-82, 88-95.) Philip Schwartz identified Watson’s photo as that of the gunman; Steven Iskrant was
unable to identify his attackers. (See id. at 79-81.)
Copyright © Montgomery Bar Association 2007
MONTGOMERY COUNTY LAW REPORTER
©2007 MBA 48
Commonwealth v. Hirschbuhl
144-391
[144 M.C.L.R., Part II
Procedural History
The authorities chose to prosecute the actors in the County of Montgomery for the holdups and
related offenses. In all, the Commonwealth charged Hirschbuhl with fifty counts of crime, the vast
majority of which were bound over for trial in the Court of Common Pleas. (See Criminal Docket at 4-9.)
Represented by privately retained counsel John Conner, Hirschbuhl filed an omnibus pretrial
motion under Pa.R.Crim.P. 578 seeking suppression of evidence and habeas corpus relief.
(See Criminal Docket at 19.) After hearing on February 21, 2006, this Court denied suppression, but
granted the writ of habeas corpus on the charges of conspiracy to rob and steal from Remy Kurland.
(See id. at 23; Suppression.) At the start of trial on March 13, 2006, Conner renewed objections to
Liane Davis’s and Remy Kurland’s out-of-court identifications of Hirschbuhl. (Trial by Jury at 12
(Mar. 13, 2006).) The Court denied the objections based on the prior ruling on suppression. (See id.)
After a three-day trial before the undersigned and a jury, the jury found Hirschbuhl guilty of
two counts of robbery in violation of 18 Pa.C.S. § 3701(a)(1); and one count each of reckless
endangerment in violation of 18 Pa.C.S. § 2705; theft; receiving stolen property; and conspiracy to
rob, recklessly endanger, thieve, receive stolen property, and use an automobile without authorization,
all in violation 18 Pa.C.S. § 903(a)(1). (See Verdict Slip.) The jury found Hirschbuhl not guilty of
other crimes, namely the charges submitted to the jury concerning the crimes perpetrated on Kurland,
Schwartz, and Iskrant in Montgomery County. (See id.) As to the remaining counts, either the Court
dismissed them or rendered judgment of acquittal before disposition under Pa.R.Crim.P. 606(a)(1)-(2)
or the prosecutor nol-prossed or withdrew the charges before verdict. (See Criminal Docket at 10-15.)
The Court deferred sentence for a presentence investigation. (Id. at 24.) On March 27, 2006, the
Commonwealth gave notice of intent to seek the mandatory minimum sentence of five years in
prison required by 42 Pa.C.S. § 9712(a) for committing a violent crime with a visibly possessed
firearm. (See Criminal Docket at 25; cf. Verdict Slip (finding firearm visibly possessed in the Davis robbery).)
At sentencing August 8, 2006, at which Hirschbuhl was represented by new counsel Raymond
Roberts, Esquire, the Court sentenced Hirschbuhl to a mandatory five to ten years in prison for
robbery, with 450 days’ credit for time served; twenty years’ consecutive probation for conspiracy to
commit robbery; and two years’ concurrent probation for each of the crimes of reckless endangerment,
conspiracy to recklessly endanger, and conspiracy to make unauthorized use of an automobile.
(See id. at 9-10, 14-16.) The Court held that the remaining charges of which Hirschbuhl had been
convicted merged for sentencing purposes. (See id. at 10-11.)
On or about September 1, 2006, Hirschbuhl filed pro se with the Clerk of Courts a notice of
appeal to the Superior Court of Pennsylvania from the “judgment” of March 15, 2006, together with
a motion for transcripts of the trial and a motion to proceed on appeal in forma pauperis. (Notice of Appeal.)
An “affidavit” supporting the motion to appeal in forma pauperis indicated the issues on appeal
related to identification, namely A) it was suggestive and the photo arrays were improper, and B)
the elements of the crime were not proven and the convictions were based on doubtful identification.
(Aff. Supp. Mot. Proceed Forma Pauperis at 1.)
Hirschbuhl’s September 1 pro se appeal, purportedly taken from a March 15 “judgment,” appeared to
be untimely under Pa.R.A.P. 903(a) (requiring notice of appeal to be filed within 30 days of entry of
order appealed). At the time he filed the appeal, moreover, Hirschbuhl was still represented by
Mr. Roberts. See generally Pa.R.Crim.P. 120. Perhaps perplexed by these procedural twists, the
Clerk of Courts delayed somewhat in processing the notice of appeal and transmitting it to the
appellate court. See generally Pa.R.Crim.P. 576(A)(4) (“In any case in which a defendant is represented
by an attorney, if the defendant submits for filing a written motion, notice, or document that has not
been signed by the defendant’s attorney, the clerk of courts shall accept it for filing,
time stamp it with the date of receipt[,] and make a docket entry reflecting the date of receipt,
and place the document in the criminal case file. A copy of the time stamped document shall be
forwarded to the defendant’s attorney and the attorney for the Commonwealth within 10 days of
receipt.”). The docket shows that on October 2, 2006, in compliance with Pa.R.Crim.P. 576(A)(4),
the Clerk sent Mr. Roberts a copy of a motion seeking credit for time served that Hirschbuhl had
filed pro se September 25, 2006. (Criminal Docket at 27.)
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MONTGOMERY COUNTY LAW REPORTER
Commonwealth v. Hirschbuhl
©2007 MBA
At about the same time, the undersigned Judge also undertook to notify Mr. Roberts of his
client’s pro se appeal, which Hirschbuhl had served directly on us. (See id.) On October 6, 2006,
having become aware through Hirschbuhl’s appellate papers and counsel’s return correspondence to
us that Hirschbuhl had not retained Mr. Roberts for the appeal, we gave leave under rule 120 for
counsel to withdraw. (See Criminal Docket at 27.) In another order entered the same day,
we granted Hirschbuhl in forma pauperis status and ordered the Clerk of Courts to waive filing fees
and provide him or his counsel with the trial transcript free of charge. (Id. at 28.) On October 10, 2006,
the Clerk of Courts sent us time-stamped copies of the notice of appeal and related motions that
Hirschbuhl had filed September 1. On October 17, 2006, the appeal was docketed in the Superior
Court of Pennsylvania under Pa.R.A.P. 907(a).
Because Hirschbuhl was now officially without counsel, we took the initiative to inquire whether
he sought appointed counsel to assist with the appeal. The Court’s communication with Hirschbuhl
pro se was somewhat hampered in that he did not give an address for service on his appellate papers
as required by Pa.R.A.P. 121(d) and Pa.R.A.P. 122(b). In imposing sentence, we had recommended
Hirschbuhl be confined at the State Correctional Institution at Chester (see Criminal Docket at 9)
close to the home he had shared with his mother. Hirschbuhl’s affidavit in support of his motion to
proceed in forma pauperis, on the other hand, stated he was incarcerated at S.C.I.-Graterford.
(Aff. Supp. Mot. Proceed Forma Pauperis at 1.) The Clerk of Courts’ official docket reflects that he
was moved from the Montgomery County Prison to yet another institution, S.C.I.-Pine Grove.
(Criminal Docket at 2.) Mr. Roberts’s correspondence to us concerning the request for time credit
indicated an address of S.C.I.-Camp Hill, also the address contained on the Superior Court’s official
docket at the time. (Appeal Docket Sheet at 2 (Oct. 17, 2006).) Using that address, we successfully
contacted Hirschbuhl with our inquiry re appointing counsel.
Hirschbuhl responded by writing the undersigned to request appointed counsel. In an order
docketed October 30, 2006, we appointed Francis M. Walsh, Esquire, to represent Hirschbuhl on
appeal. (Id.) After allowing a reasonable period of time for Mr. Walsh to review the record and
formulate the issue(s), on December 6, 2006, we directed him under Pa.R.A.P. 1925 to file and serve
a concise statement of matters complained of on appeal. (Criminal Docket at 28.)
On December 8, 2006, counsel filed the required statement. (Id.) The statement injected into
the case four issues, none of which had been raised previously: 1) This Court lacked jurisdiction to
try Hirschbuhl as an adult because he was a juvenile at the time of the crimes and the only circumstance
allowing criminal charges to be filed directly against a juvenile—where the bill of information alleges
a deadly weapon was used in the commission of the offense—failed to occur; 2) The Court erred in
sentencing Hirschbuhl for reckless endangerment because that charge merged with robbery; 3)
The Court erred in sentencing Hirschbuhl for conspiring to endanger another person recklessly
because one cannot conspire to do a reckless act; 4) The Court erroneously sentenced Hirschbuhl
separately for conspiring to endanger recklessly and use an automobile without authorization because
there was only one conspiracy against one victim and all other charges of conspiracy merged with
the conspiracy to rob. (Concise Statement paras. I-IV.) Three of the four new issues concerned
sentencing, and notes of the sentencing proceeding were transcribed and filed January 2, 2007.
(See Criminal Docket at 29.)
A final relevant procedural development concerns Hirschbuhl’s codefendant David Watson.
Watson had pled guilty in a separate proceeding, but was sentenced August 8, 2006, the same day as
Hirschbuhl. Commonwealth v. Watson, No. 4237-05 (Pa.C.P. Montg. County Aug. 8, 2006), appeal
docketed, No. 423 EDA 2007 (Pa. Super. Ct. Feb. 26, 2007). On September 6, 2006, this Court
denied Watson’s post-sentence motion seeking reconsideration of sentence. Criminal Docket at 37.
However, Watson did not pursue a timely appeal under Pa.R.Crim.P. 720(A). Instead, on February 6, 2007,
represented by the Public Defender, Watson filed a petition for permission to appeal nunc pro tunc.
Criminal Docket at 38. This Court granted the petition February 12, 2007, and an appeal was taken
nunc pro tunc to the Superior Court of Pennsylvania. Id. This lower Court ordered, and the Public
Defender filed, a statement under Pa.R.A.P. 1925 of matters complained of on the appeal,
Criminal Docket at 39, which raised issues related to Watson’s sentencing proceedings,
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Commonwealth v. Hirschbuhl
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[144 M.C.L.R., Part II
Concise Statement paras. 1-3. Upon receiving Watson’s notice of appeal, the Superior Court entered
a notation on the docket that Watson’s appeal was to be listed consecutively to Hirschbuhl’s. Appeal
Docket Sheet at 3. However, this lower Court will address Watson’s appeal in a separate opinion.
The issues Watson raises concerning his sentencing pursuant to a guilty plea and those Hirschbuhl
raises following his conviction pursuant to a trial by jury are distinct and unrelated, regardless of the
common factual scenario of the codefendants’ crimes.
Issues on Appeal
As stated, Hirschbuhl, through appointed counsel, has raised four appellate issues, none of
which were previously raised in this Court. Hirschbuhl first contends that this Court had no jurisdiction
to try him as an adult because he was a juvenile at the time of the incident, and the bill of information
charging robbery failed to allege that a deadly weapon was used in commission of the offense,
“which is the only circumstance where criminal charges can be directly filed against a juvenile with
the criminal division of the court of common pleas instead of the juvenile division.” (Concise
Statement para. I.) Second, Hirschbuhl argues the offense of reckless endangerment should have
merged with the conviction for robbery for purposes of sentencing. (Id. para. II.) Third, Hirschbuhl
maintains the Court erroneously sentenced him for conspiracy to endanger another person recklessly
“because you cannot conspire to do a reckless act.” (Id. para. III.) Fourth, Hirschbuhl claims the
Court erred in sentencing him separately for conspiracy to endanger recklessly and to use a motor
vehicle without authorization because those charges merged with the conspiracy to commit robbery,
“since there was only one conspiracy against Liane Davis by the defendant and his co-defendant.”
(Id. para. IV.)
Discussion
[1] Hirschbuhl never raised the issues framed in his concise statement pursuant to Pa.R.A.P. 1925,
either before trial, at trial, or at sentencing. This Court preliminarily must question, sua sponte,
whether the issues have been waived under the rule that, “Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a); see Commonwealth v.
Edmondson, 553 Pa. 160, 163 & n.7, 718 A.2d 751, 752 & n.7 (1998) (reversing Superior Court’s
reversal of conviction, sua sponte finding waiver for purposes of appeal of issue not raised at trial);
Commonwealth v. Triplett, 476 Pa. 83, 89 & n.10, 381 A.2d 877, 881 & n.10 (1977) (finding sua sponte
that issue not raised in trial court was waived; appellate court will not entertain issues raised for first
time on appeal); see also Glenbrook Leasing Co. v. Beausang, 839 A.2d 437, 444 (Pa. Super. Ct. 2003)
(“A party cannot rectify the failure to preserve an issue by proffering it in response to a Rule 1925(b)
order.”), aff ’d, 584 Pa. 129, 870 A.2d 318 (2005); id. (“A Rule 1925(b) statement of matters
complained of on appeal is not a vehicle in which issues not previously asserted may be raised for
the first time. It is, instead, the vehicle by which an appellant advises the trial court of the previously
preserved issues that the appellant will advance on appeal so that the trial court may determine if it
needs to write an opinion and to direct the trial court to the issues for which an opinion is needed.”
(emphasis added)).
[2], [3], However, Hirschbuhl’s first issue purports to question this Court’s jurisdiction to try
him as an adult rather than as a juvenile. A court’s jurisdiction over criminal charges can never be
waived. Commonwealth v. McDonald, 881 A.2d 858, 860 (Pa. Super. Ct. 2005). Pennsylvania’s
appellate courts have established that the issue of certification of a juvenile to stand trial as an adult
is a jurisdictional issue, and as such cannot be waived. Commonwealth v. Cotto, 708 A.2d 806, 808 n.1
(Pa. Super. Ct. 1998), aff ’d, 562 Pa. 32, 753 A.2d 217 (2000); Commonwealth v. McGinnis,
450 Pa.Super. 310, 314, 675 A.2d 1282, 1284 (1996).
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Commonwealth v. Hirschbuhl
©2007 MBA
The cases finding that the issue of whether to try a juvenile as an adult is jurisdictional and not
subject to waiver, however, differ radically procedurally from this case. For example, in Cotto,
the Commonwealth had charged the fifteen-year-old defendant criminally with six counts of robbery
and related offenses. The defendant filed a motion to transfer the proceedings to juvenile court and
a motion for writ of habeas corpus premised on the argument that 1995 amendments to the Juvenile Act,
42 Pa.C.S. § 6322(a), governing transfers to juvenile court, were unconstitutional. The trial court
denied both motions. The defendant then pled guilty to the criminal charges, specifically reserving
the right to appeal the constitutionality of the amendments to the Act. In this context,
the Superior Court observed that certification of a juvenile to stand trial as an adult was a jurisdictional
issue that could not be waived. Cotto, 708 A.2d at 808 n.1. Both the trial court and the Superior
Court reviewed the merits of, and rejected, the defendant’s request to be transferred to juvenile court
and his constitutional attacks on the Act’s provisions respecting transfer. In McGinnis,
the Commonwealth had filed a petition in juvenile court charging the seventeen-year-old defendant
with delinquent acts constituting robbery and related offenses stemming from two separate incidents.
The Commonwealth then filed, but withdrew, a petition to certify the charges for trial in adult court.
The county office of juvenile probation then filed its own petition to transfer the case to the criminal
division. The trial court transferred the matter, and the defendant was convicted in criminal court
after trial by jury. The defendant failed to appeal the conviction. He later filed a petition for
post-conviction relief on the ground he was denied his right to allocution at sentencing. The lower
court granted the petition and resentenced him. The defendant then appealed, raising the issues that
the court had erred in allowing the county juvenile authorities to move to transfer his case to adult
court and in transferring the matter. The Commonwealth moved to dismiss the appeal on the basis of
the defendant’s failure to preserve the issues by filing post-trial motions or an appeal from his
conviction. The Superior Court denied the motion to dismiss the appeal on the ground that the issue
of certifying a juvenile to stand trial as an adult is jurisdictional and cannot be waived. In McGinnis,
as in Cotto, the trial court had had the opportunity to address the merits of the defendant’s claim he
should be tried as a juvenile, inasmuch as the claim had been made in response to the juvenile
authorities’ petition to transfer the case to adult court.
In Hirschbuhl’s case, on other hand, the issue of eligibility to stand trial as an adult was never
raised before the filing of the 1925(b) statement, either in a pretrial petition to certify or decertify
him as an adult, or in a motion to dismiss the bills of information, or at trial, or at any other stage of
the proceedings. Therefore, the Court never had the opportunity to exercise discretion under the
Juvenile Act over whether Hirschbuhl should be tried as an adult or was amenable to treatment in the
juvenile system. Indeed, the very fact of Hirschbuhl’s age when he committed the offenses was
never the subject of testimony placed on the record before this Court. Though our docket refers to
both Hirschbuhl and Watson as juveniles (Criminal Docket at 3) and Hirschbuhl states he was
seventeen at the time of the incidents (Trial by Jury at 61-63 (Mar. 15, 2006)), no one ever raised his
age as an issue in this case. With the issue being raised for the first time at the appellate stage of the
proceedings, this Court has no record on which to address the merits of the issue and no recourse but
to find the issue waived.
Besides being waived, Hirschbuhl’s argument that the Court had no jurisdiction to try him as an
adult is meritless. The argument bespeaks a misunderstanding of juvenile law in this Commonwealth.
Whether or not use of a deadly weapon should properly be pled in a bill of information, the absence
of such an allegation does not oust the Court’s jurisdiction over criminal charges. From the institution
of these proceedings, Hirschbuhl and his counsel were aware that use of a deadly weapon was at the
root of all the charges, and they remained aware of that fact through trial, at which evidence of such
use was presented, through verdict, the Commonwealth’s notice of the mandatory minimum sentence
for use of a firearm, and sentencing, at which the mandatory minimum under 42 Pa.C.S. § 9712(a)
was actually imposed.
Hirschbuhl’s argument is premised entirely on the failure of the bill of information charging
him with robbery to allege use of a deadly weapon. This Court is aware of no authority for the
proposition that the language of the bill of information controls the Court’s jurisdiction to try someone
as an adult.
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[144 M.C.L.R., Part II
[4] The Juvenile Act provides, “This chapter [the Act] shall apply exclusively to the following:
(1) Proceedings in which a child is alleged to be delinquent . . . .” 42 Pa.C.S. § 6303(a)(1) (emphasis added).
The Act defines “child” as, inter alia, an individual who is under the age of eighteen, id. § 6302,
and “delinquent child” as “[a] child ten years of age or older whom the court has found to have
committed a delinquent act and is in need of treatment, supervision or rehabilitation,” id. (emphasis added).
“Delinquent act” is defined generally as an act designated a crime under law. Id. However,
(2) The term shall not include [inter alia:]
(i) The crime of murder.
(ii) Any of the following prohibited conduct where the child
was15 years of age or older at the time of the alleged conduct and a deadlyweapon as defined in 18 Pa.C.S. § 2301
(relating to definitions) was used during the commission of
the offense, which, if committed by an adult,would be classified as:
....
(D) Robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) .
.
..
....
(I) An attempt, conspiracy or solicitation to commit murder
or any of [the listed] crimes, as provided in [18 Pa.C.S. §§
901-903 (relating to criminal attempt, solicitation, and
conspiracy, respectively)].
42 Pa.C.S. § 6302. As it was proven Hirschbuhl was involved in robbery and conspiracy to commit
robbery wherein a deadly weapon was used, these offenses were not “delinquent acts” as defined by
the Juvenile Act, and juvenile court therefore had no jurisdiction of the offenses. “Offenses not
included within the definition of ‘delinquent act’ are filed directly in criminal court, rather than in
juvenile court.” Cotto, 708 A.2d at 809.
That the bills of information did not recite the use of a deadly weapon in Hirschbuhl’s offenses
is of no moment. The bills of information are but one stage of the charging procedure in criminal
court, and are not the sole source of the Court’s jurisdiction over a charge. In this case, as is typical,
the bills of information were largely boilerplate, merely repeating the language of the criminal statutes
Hirschbuhl was charged with violating. Besides the victims’ names, the bills contained no specific
information about the crimes. If the bills of information were defective in any way,
Hirschbuhl could have raised that claim at any stage of the proceedings, whereupon the Court may
have promptly allowed the Commonwealth to amend the bills.
Hirschbuhl was on notice from day one that he was charged with committing, inter alia, robbery
and conspiracy to commit robbery in which a deadly weapon was used. The bills of information are
hardly the only documents from which a defendant may deduce the alleged facts of the crimes with
which he is charged. The affidavits of probable cause supporting the criminal complaints and, in this
case, warrants to search the suspects’ houses are fertile sources of the Commonwealth’s factual
allegations, and certainly would have alerted the defendant to the alleged use of a deadly weapon.
Hirschbuhl also would have known of this allegation from the preliminary hearing. Of course, at the
trial itself, use of a deadly weapon in the crimes was very much in evidence. The Commonwealth’s
posttrial notice of intent to seek the mandatory minimum term of imprisonment of five years under
42 Pa.C.S. § 9712(a) for visibly possessing a firearm in committing a violent crime amply notified
all concerned that this element, which effectively removed the case from the juvenile court’s
jurisdiction, was present. Still, at no point before sentencing did anyone raise the novel claim that
the absence from the bills of information of an allegation of use of a deadly weapon defeated the
jurisdiction of criminal court. When the Court actually imposed the mandatory minimum sentence
under 42 Pa.C.S. § 9712(a), any claim that Hirschbuhl’s offenses were subject to the Juvenile Act
went out the window.
Copyright © Montgomery Bar Association 2007
144-396
389 2007]
MONTGOMERY COUNTY LAW REPORTER
Commonwealth v. Hirschbuhl
©2007 MBA
The remaining three claims raised in Hirschbuhl’s statement of matters complained of on appeal
deal with merger of sentences. The three sentences he claims should have been merged—those for
the crimes of reckless endangerment and conspiracy to endanger recklessly and to use an automobile
without authorization—were all two-year terms of probation running concurrently with the twenty-year
term of probation that had already been imposed for the crime of conspiracy to commit robbery.
Thus, vacation of these two-year probationary sentences would not alter the sentencing scheme in
any manner, nor provide Hirschbuhl any practical relief from the main sentence of five to ten years
in prison followed by twenty years’ consecutive probation.
[5], [6] Hirschbuhl did not raise his claims of merger at any stage before, during, or after the
sentencing proceeding, at which the Court sua sponte found that some of the offenses of which he
had been convicted merged. However, a claim that convictions merged for sentencing purposes is a
challenge to the legality of sentence. Commonwealth v. Klein, 795 A.2d 424, 430 n.4 (Pa. Super. Ct. 2002)
(citing Commonwealth v. Rippy, 732 A.2d 1216 (Pa. Super. Ct. 1999)). As a challenge to the legality
of the sentence, in other words, the Court’s power to impose the sentence, a claim of merger is not
waived and may be raised by the appellate court sua sponte even if not raised by the appellant.
See Commonwealth v. Murphy, 405 Pa. Super. 452, 457 n.8, 592 A.2d 750, 753 n.8 (Pa. Super. Ct. 1991)
(citing Commonwealth v. Johnston, 348 Pa. Super. 160, 501 A.2d 1119 (1985), aff’d, 515 Pa. 454, 530 A.2d 74 (1987)).
By failing to raise sentencing merger before the filing of the 1925(b) statement, Hirschbuhl has
made our study of the issue difficult. Reviewing a question of merger requires the Court to determine
whether the defendant has been convicted of lesser and greater offenses, and whether those offenses
involved a single or multiple acts. Given the extent of the rampage through three counties for which
Hirschbuhl was tried, it is not entirely clear whether the multiple crimes of which he was convicted
arose from one or more than one separate act.
[7] However, in painstakingly comparing the bills of information, the notes of testimony,
and the jury’s verdict, this Court determined that, by and large, the jury found Hirschbuhl guilty of
the crimes committed against Liane Davis in Philadelphia County, and not guilty of the crimes
committed later in Montgomery County. That being the case, the Court finds that the crime of
reckless endangerment merged for sentencing purposes with the crime of robbery perpetrated on
Liane Davis, because he committed but one act at the scene. See Commonwealth v. Robinson,
379 Pa. Super. 204, 549 A.2d 977 (1988). Furthermore, the Crimes Code provides, “A person may
not be convicted of more than one of the inchoate crimes of criminal attempt, criminal solicitation,
or criminal conspiracy for conduct designed to commit or to culminate in the commission of the
same crime.” 18 Pa.C.S. § 906. Since Hirschbuhl was acquitted of the crimes committed in
Montgomery County, and found guilty of those committed in Philadelphia, there was at most but a
single conspiracy to commit those crimes. Accordingly, the crimes of conspiracy to reckless
endangerment and to unauthorized use of an automobile merged with conspiracy to rob Liane Davis.
Accordingly, the separate two-year probationary sentences imposed for reckless endangerment,
conspiracy to reckless endangerment, and conspiracy to make unauthorized use of an automobile
merged for sentencing purposes, and those sentences should be vacated. Otherwise, this Court
respectfully suggests that the judgment of sentence should be affirmed.
(Appealed to Superior Court September 1, 2006.)
Copyright © Montgomery Bar Association 2007