Appeal, No. 387, Oct. T., 1961, from order of Court of Common Pleas No. 1 of Philadelphia County, june T., 1961, No. 540, in case of Commonwealth ex rel. Forrest J. Trotter v. Edward J. Hendrick, Superintendent. Order affirmed.
Ray E. Machen, for appellant.
Arlen Specter, Assistant District Attorney, with him Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, jr., District Attorney, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 197 Pa. Super. Page 231]
OPINION BY MONTGOMERY, J.
This is an appeal from an order dismissing, after hearing, the petition of Forrest J. Trotter for a writ of habeas corpus. Four indictments were brought against the appellant, upon all of which he was brought to trial, found guilty and sentenced on September 27, 1955, as follows:
No. 523, August Sessions, 1955, charging possession and sale of drugs, sentence, two to five years; No. 524, August Sessions, 1955, charging possession and sale of drugs, sentence two to five years consecutively; No. 748, June Sessions, 1955, charging conspiracy to sell drugs, sentence one to two years, consecutively; No. 747, June Sessions, 1955, charging possession and sale of drugs, sentence five to ten years, consecutively, as on a second conviction. Appellant was committed to Philadelphia County Prison on September 27, 1955, to serve the aggregate sentence of 10 to 22 years.
Bill No. 747 contained an averment of a prior conviction which set forth that prior to the offenses alleged in the above indictments, the appellant had been "found guilty" of charges of unlawful and felonious possession of drugs, and was thereupon given a suspended sentence of nine months and ordered to pay costs of court. The appellant contends that the five to ten year sentence received on Bill No. 747 is illegal as it is based on the erroneous assumption of the lower court that the appellant was convicted of a prior offense under the Drug Act, which provides in part:
"Any person who possesses any drugs in violation of the provisions of this act shall be guilty of a felony; and, upon conviction thereof, shall be sentenced as follows: ... for a second offense, or, if in case of a first conviction of violation of any provisions of this section, the offender shall previously have been convicted of any violation of the laws of the United States or of any other state, territory or district relating to drugs, and
[ 197 Pa. Super. Page 232]
said violation would have been a violation of the provisions of this section had it occurred in this Commonwealth, to pay a fine not exceeding five thousand dollars ($5000) and to undergo imprisonment by separate or solitary confinement at labor of not less than five (5) years and not exceeding ten (10) years ..." Act of May 29, 1956, P.L. 1809, § 3 as amended, 35 P.S. 865.
He contends that the suspension of the sentence for his earlier offense does not satisfy the strict legal definition of the word "conviction" to make him subject to ...