Appeal, No. 91, Oct. T., 1960, from judgment and order of Court of Quarter Sessions of Blair County, Jan. T., 1960, No. R.D. 81, in case of Commonwealth v. Alfred Turchetta. Judgment of sentence and order affirmed.
Joseph G. Feldman, with him Merle K. Evey, Stephen M. Feldman, and Feldman & Feldman, for appellant.
Frank B. Warfel, District Attorney, for Commonwealth, appellee.
Before Gunther, Woodside, Ervin, Watkins, and Montgomery, JJ. (rhodes, P.j., and Wright, J., absent).
[ 193 Pa. Super. Page 378]
This is an appeal from the sentence of the court below made on January 12, 1960 on indictment R.D. 81 January Sessions, 1960, and an order of that court denying defendant's petition to withdraw his plea of guilty.
In his brief appellant's counsel states: "There are two indictments captioned R.D. 81, January Sessions, 1960, one charging Paul Strong and Alfred Turchetta with false pretenses and one charging Paul Strong and Alfred Turchetta with conspiracy." Paul Strong, who was tried separately, was acquitted of both charges by the jury on December 9, 1959.
Appellant now argues that he cannot be sentenced upon a conspiracy charge when his co-conspirator has been acquitted. We are in accord with this statement of the law. See Com. v. Salerno, 179 Pa. Superior Ct. 13, 116 A.2d 87. The argument, however, does not apply to this case because the record shows that Turchetta was not sentenced upon the conspiracy charge but was sentenced upon the false pretenses charge. Furthermore, even if the sentence had been upon an indictment containing the two counts of conspiracy and false pretenses, since the sentence of 2 1/2 to 5 years is within the statutory provisions for the charge of cheating by false pretenses it would be a valid sentence: Act of June 24, 1939, P.L. 872, § 836, as amended, 18 PS § 4836. A sentence is legal if it is warranted by any count in the indictment: Com. ex rel. Tyson v. Day, 181 Pa. Superior Ct. 259, 263, 124 A.2d 426, certiorari denied 77 S.Ct. 862, 353 U.S. 951, 1 L.Ed.2d 859.
It is clear that the decision to allow or disallow the withdrawal of a guilty plea lies within the discretion of the trial court and only where there has been a clear abuse of discretion will its action be reversed on appeal. We have so recently and clearly set forth the
[ 193 Pa. Super. Page 379]
law on this subject that a repetition is not called for. See Com. v. Patch, 98 Pa. Superior Ct. 464; Com. v. DiPaul, 122 Pa. Superior Ct. 53, 184 A. 480; Com. v. Todd, 186 Pa. Superior Ct. 272, 142 A.2d 174.
Appellant's argument is based largely upon the fact that a jury had acquitted Strong, who was Turchetta's co-conspirator, of the crime of cheating by false pretenses. In that case the following facts were elicited: That on June 7, 1957 defendant Turchetta presented to Mr. Joy Fortney, assistant cashier of the First National Bank of Altoona, a chattel mortgage security agreement signed by Paul Strong and represented that Strong had purchased a 1956 Buick 4-door, hard top; that Mr. Fortney approved a loan and deposited $1,350.00 in the Turchetta Brothers account; that the files of the Bureau of Motor Vehicles at Harrisburg, on or about May 29, 1958 failed to reveal a transfer of the title of the automobile in question to Paul Strong. Paul Strong testified in his own defense that he had bought the 1956 Buick in question on June 7, 1957; that he had signed the necessary papers in blank for this purpose; that the automobile was left on Turchetta's lot for resale and the profit on the resale was to go to Strong; that Strong paid $800.00 to the bank on the loan; that Turchetta never changed the title to Strong's name because he did not think it was necessary since it would be easier to have the title there when the car was resold. The court below undoubtedly had knowledge of the facts and circumstances brought out in the Strong trial but, notwithstanding the ...