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COMMONWEALTH v. ORSINO (03/21/62)

March 21, 1962

COMMONWEALTH
v.
ORSINO, APPELLANT.



Appeal, No. 373, Oct. T., 1961, from order of Court of Oyer and Terminer and General Jail Delivery of Philadelphia County, May T., 1958, Nos. 926, 928 and 929, in case of Commonwealth of Pennsylvania v. John Orsino. Order affirmed.

COUNSEL

Mary Alice Duffy, with her Duffy and Duffy, for appellant.

Arlen Specter, Assistant District Attorney, with him Louis F. McCabe, Assistant District Attorney, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Rhodes

[ 197 Pa. Super. Page 308]

OPINION BY RHODES, P.J.

This is an appeal by John Orsino from the order of the Court of Oyer and Terminer and General Jail Delivery and the Court of Quarter Sessions of Philadelphia County dismissing his petition for writ of error coram nobis and remanding him to the Eastern State Penitentiary.*fn1

On July 28, 1958, appellant pleaded guilty to fourteen bills of indictment charging, inter alia, rape of a thirteen-year-old girl, corrupting the morals of a minor, indecent assault, armed robbery, assault and battery with intent to murder, commission of a crime of violence while armed with a firearm, operating an automobile without consent of the owner, and conspiracy. The rape was committed on September 1, 1953. The robberies took place on February 5 and 8, 1958, and May 8, 1958. Appellant, with an accomplice, forced drivers of three different trucks making coin collections to lie on the floor while the trucks were driven to prearranged destinations. The trucks involved were used in making collections; one from cigarette vending machines, and two from coin receptacles in public telephone booths. Cigarettes and money totaling $1,800 were taken from the vending machine company truck and $3,000 from one telephone company truck. Three detectives, who were notified by radio, joined in pursuit of the telephone company truck in the robbery of May 8, 1958. One detective pursued appellant who had abandoned the truck. Shots were exchanged; the detective

[ 197 Pa. Super. Page 309]

    was struck on the right thigh and left hand; appellant received two superficial wounds, and a third shot resulted in complete severance of his spinal cord.

On September 9, 1958, appellant, then thirty-one years of age, was brought before the court for sentence; he was lying on a stretcher. His prior record included two sentences to the Pennsylvania Industrial School at Camp Hill for robbery and burglary, respectively. Exhaustive pre-sentence investigation was made by the probation officer of the court of quarter sessions. The medical report from the Philadelphia General Hospital where appellant was confined showed that appellant was unable to move his trunk and lower extremities as the result of a transection of the spinal cord causing complete and permanent paralysis below the level of the injury. With physical therapy and nursing care it was believed he would be able to get about on a wheel chair. Dr. Hohn Shearer, Director of the Eastern Diagnostic and Classification Center of the Eastern State Penitentiary stated that that institution would be able to handle such a case, but it was preferable that appellant be admitted to a veterans' hospital. A letter from the authorities of the Philadelphia office of the Veterans Administration Hospital indicated appellant would be eligible for special care there if he were placed on probation and sentence suspended. Accordingly, the sentence was suspended and appellant placed on probation for thirty years. It was ordered that he remain in the Philadelphia General Hospital pending possible transfer to a Veterans Administration Hospital.

On November 24, 1959, a hearing was held in appellant's presence, as a result of which his probation was revoked and he was sentenced to imprisonment in the Eastern State Penitentiary for terms totaling not less than twelve years nor more than thirty-six years. At this hearing appellant's wife ...


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