J.S22032/16 & J.S22033/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA         :     IN THE SUPERIOR COURT OF
                                     :           PENNSYLVANIA
                                     :
                 v.                  :
                                     :
JOSHUA BRIAN FETTEROLF,              :
                                     :
                  Appellant          :     No. 1016 MDA 2015

              Appeal from the Order Entered May 13, 2015
             In the Court of Common Pleas of Union County
             Civil Division No(s): CP-60-MD-0000109-2015

COMMONWEALTH OF PENNSYLVANIA         :     IN THE SUPERIOR COURT OF
                                     :           PENNSYLVANIA
                                     :
                 v.                  :
                                     :
JOSHUA BRIAN FETTEROLF,              :
                                     :
                  Appellant          :     No. 1017 MDA 2015

          Appeal from the Judgment of Sentence May 13, 2015
             In the Court of Common Pleas of Union County
           Criminal Division No(s): CP-60-MD-0000340-2014

COMMONWEALTH OF PENNSYLVANIA         :     IN THE SUPERIOR COURT OF
                                     :           PENNSYLVANIA
                                     :
                 v.                  :
                                     :
JOSHUA BRIAN FETTEROLF,              :
                                     :
                  Appellant          :     No. 1645 MDA 2015

              Appeal from the Order Entered July 21, 2015
             In the Court of Common Pleas of Union County
             Civil Division No(s): CP-60-MD-0000145-2015
J.S22032/16 & J.S22033/16


BEFORE:    MUNDY, J., DUBOW, J., and STRASSBURGER, J.*

CONCURRING MEMORANDUM BY STRASSBURGER, J.:                FILED MAY 19, 2016

     I join the Majority Memorandum insofar as it affirms Appellant’s

indirect criminal contempt conviction arising out of the letter referenced at

Paragraph 3A.

     I reluctantly concur in the result reached by the Majority in reversing

Appellant’s conviction for indirect criminal contempt arising out of his

attempted communication with his wife via Ms. Pamela Klinger, the

corrections officer. The trial court properly found that Appellant attempted

to contact his wife.   Had the trial court convicted Appellant of criminal

attempt, we would affirm. In Commonwealth v. Sims, 919 A.2d 931 (Pa.

2007), our Supreme Court held that an attempted crime is a lesser included

offense of the completed crime.    Thus, even though not charged with the

attempted crime, Appellant could have been convicted of such.

     However, where a defendant does not complete the crime, he cannot

be convicted of the completed crime, as was Appellant and the defendant in

Commonwealth v. Tate, 816 A.2d 1097 (Pa. 2003), where our Supreme

Court reversed the conviction and this Court. I therefore concur.




*Retired Senior Judge assigned to the Superior Court.

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