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COMMONWEALTH EX REL. GREEN v. COURT OYER AND TERMINER AND QUARTER SESSIONS (07/13/54)

July 13, 1954

COMMONWEALTH EX REL. GREEN
v.
COURT OF OYER AND TERMINER AND QUARTER SESSIONS, ERIE COUNTY, ET AL.



COUNSEL

Edward L. Green, in pro. per.

Damian McLaughlin, Dist. Atty., Erie, for appellee.

Before Hirt, Acting P. J., and Ross, Gunther, Wright, Woodside and Ervin, Jj.

Author: Wright

[ 176 Pa. Super. Page 105]

WRIGHT, Judge.

On April 19, 1952, Edward L. Green was the operator of a motor vehicle involved in a collision, as the result of which a passenger in the other vehicle received fatal injuries. In the subsequent investigation it was discovered that Green's operating privilege had been suspended. He was indicted at No. 2 September Sessions, 1952, for involuntary manslaughter, and at No. 89 September Sessions, 1952, for operating a motor vehicle while his license was suspended. On September 5, 1952, he entered a plea of guilty to both charges. He was sentenced on bill No. 89 to undergo imprisonment in the Allegheny County Workhouse for an indefinite term, the minimum being six months and the maximum one year. On bill No. 2 he was sentenced to undergo imprisonment in the Allegheny County Workhouse for an indefinite term, the minimum being one year and six months and the maximum three years, to run consecutively. Green has appealed from an order dismissing his petition for a writ of habeas corpus.

The first of appellant's two principal contention is that his sentences should have been for fixed or definite terms, rather than for indefinite terms. Prior to the Act of September 26, 1951, P.L. 1460, further amending the Act of June 19, 1911, P.L. 1055, section 6, as amended by the Act of June 29, 1923, P.L. 975, 19 P.S. ยง 1057, appellant's position would have been well founded. In Commonwealth ex rel. Oveido v. Baldi, 152 Pa. Super. 340, 31 A.2d 753, we pointed out that the original statute applied only to crimes

[ 176 Pa. Super. Page 106]

    punishable by imprisonment in a state penitentiary. As last amended, however, the statute now contains the provision that, 'Whenever any person is convicted of any crime punishable by simple imprisonment, the court may, in its discretion, pronounce a sentence either for a fixed term or for an indefinite term, as may seem proper under the circumstances of the case, but in no case to exceed the maximum term prescribed by law as a penalty for such offense'.

Appellant nevertheless argues that the imposition of an 'indeterminate'*fn1 sentence for an offense punishable only by simple imprisonment is 'arbitrary' since all offenders in the same class are not treated alike, in that one may be given a fixed sentence while another may be given an indefinite sentence to the same type of prison for the same crime. A sentence for an indefinite term must be deemed a sentence for the maximum term prescribed by law as a punishment for the offense committed. Commonwealth ex rel. Carmelo v. Smith, 347 Pa. 495, 32 A.2d 913. The maximum term in an indefinite sentence is the real sentence. Commonwealth ex rel. Monaghan v. Burke, 169 Pa. Super. 256, 82 A.2d 337. Appellant could have been sentenced for a term of not more than three years for operating a motor vehicle while his license was suspended, and for a term of not more than three years for involuntary manslaughter. The sentences actually imposed by the trial judge did not exceed these limits. The legislature has exclusive power to determine the penological system of the Commonwealth, and it alone can prescribe the punishments to be meted out for crime. It can provide for fixed penalties or grant to the courts such measure of discretion in the imposition of sentences as it may see fit. Commonwealth ex rel.

[ 176 Pa. Super. Page 107]

Banks v. Cain, 345 Pa. 581, 28 A.2d 897, 143 A.L.R. 1473. The imposition of indefinite sentences is not discriminatory. See Commonwealth v. Sweeney, 281 Pa. 550, 127 A. 226.

Appellant next contends that he should have been sentenced on only one bill of indictment because both offenses grew out of one act, so that 'the major crime swallowed up the minor offense'. He relies upon Commonwealth ex rel. Schultz v. Smith, 139 Pa. Super. 357, 11 A.2d 656. That case involved a number of charges growing out of the same sexual act, and the factual situation presented was obviously different from that in the case at bar. The proposition advanced by appellant does not apply where one offense is not necessarily involved in another, but actually constitutes a separate and distinct crime. The true test of whether one criminal offense has merged in another is not whether the two criminal acts are successive steps in the same transaction but whether one crime necessarily involves the other. Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920; Commonwealth v. Comber, 374 Pa. 570, 97 A.2d 343. In the case at bar, the two offenses, while occurring at the same time, were separate and distinct and did not merge*fn ...


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