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COMMONWEALTH EX REL. PAYLOR v. CAVELL. (01/21/58)

January 21, 1958

COMMONWEALTH EX REL. PAYLOR, APPELLANT,
v.
CAVELL.



Appeal, No. 188, April T., 1957, from order of Court of Common Pleas of Allegheny County, Jan. T., 1957, No. 2199, in case of Commonwealth of Pennsylvania ex rel. Henry Paylor v. Angelo C. Cavell, Warden. Order affirmed.

COUNSEL

Hymen Schlesinger, for appellant.

William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for appellee.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (hirt, J., absent).

Author: Rhodes

[ 185 Pa. Super. Page 178]

OPINION BY RHODES, P.J.

This is the fourth appeal to this Court by relator, Henry Paylor.*fn1 The matters involved are the validity of a sentence imposed in 1944, and the constitutional right to a public trial. Relator contends, as he did in his prior petitions for writ of habeas corpus, that the sentence imposed on the bill of indictment charging robbery with aggravating circumstances is illegal. See Com. ex rel. Paylor v. Johnston, 180 Pa. Superior Ct. 228, 230, 119 A.2d 562, allocatur refused 180 Pa. Superior Ct. xxix, certiorari denied 351 U.S. 969, 76 S. Ct. 1035, 100 L. Ed. 1488. However, he now asserts for the first time that he was deprived of his constitutional right to a public trial.

Relator was tried and convicted in June, 1944, in the Court of Oyer and Terminer of Allegheny County, upon bills of indictment charging rape, robbery with aggravating circumstances, and assault and battery with intent to ravish. On June 13, 1944, he was sentenced by that court to the Western State Penitentiary to serve a term of not less than seven and one-half years and not more than fifteen years on the charge of rape; a term of five to ten years on the robbery charge; and a term of two and one-half to five years on the charge of aggravated assault and battery with

[ 185 Pa. Super. Page 179]

    intent to ravish. The sentences were to run consecutively in the order given. On June 15, 1944, within the term, the sentence on the charge of robbery with aggravating circumstances was changed to a term of ten to twenty years. See Com. ex rel. Paylor v. Claudy, 173 Pa. Superior Ct. 336, 338, 98 A.2d 468.

The repetitious attack upon the sentence for robbery with aggravating circumstances is devoid of merit. In disposing of the last appeal of this relator in Com. ex rel. Paylor v. Johnston, supra, 180 Pa. Superior Ct. 228, 230, 119 A.2d 562, 563, we stated: "And he contends that his sentence on Bill No. 2, June Sessions, 1944, charging robbery with aggravating circumstances was excessive. ... the sentence, on the conviction of the kind of robbery defined by § 705 of the Penal Code of June 24, 1939, P.L. 872, 18 PS § 4705, of from 10 to 20 years imprisonment was proper. He was not charged nor convicted of robbery as defined by § 704 of the Code, 18 PS § 4704, which carried with it a lesser penalty of a maximum term of imprisonment of but 10 years." The bill charging robbery with aggravating circumstances was drawn in language approved by this Court in Com. ex rel Conrad v. Ashe, 142 Pa. Superior Ct. 254, 256, 15 A.2d 926; it clearly indicates that it charges the more aggravated crime. The trial court had the power and authority to reconsider and change the sentence within the term. Com. ex rel. Wallace v. Burke, 158 Pa. Superior Ct. 612, 45 A.2d 871. There is no ground for relator's complaint that the sentence was increased from the maximum which could have been imposed under an indictment charging robbery to the maximum which can be imposed under an indictment charging robbery with aggravating circumstances. The indictment upon which relator was tried and convicted charged the more serious crime and sustains the sentence finally

[ 185 Pa. Super. Page 180]

    imposed by the court within the same term. Moreover, the sufficiency of the evidence to sustain a conviction is not a proper matter for habeas corpus. Com. ex rel. ...


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