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COMMONWEALTH v. DUFF (07/05/63)

July 5, 1963

COMMONWEALTH
v.
DUFF, APPELLANT.



Appeal, No. 79, Oct. T., 1963, from judgment of Court of Quarter Sessions of the Peace of Philadelphia County, June T., 1954, Nos. 1132 and 1133, Dec. T., 1957, Nos. 106 and 107, and Oct. T., 1958, Nos. 761, 762, and 763, in case of Commonwealth of Pennsylvania v. Nathaniel Duff. Judgment affirmed.

COUNSEL

Robert N. C. Nix, Jr., for appellant.

Bernard Edelson, Assistant District Attorney, with him Arlen Specter, Assistant District Attorney, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

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

Author: Flood

[ 201 Pa. Super. Page 388]

OPINION BY FLOOD, J.

This appeal challenges the power of a trial judge who has suspended sentence upon several guilty pleas, to impose a prison sentence upon the pleas upon the defendant's conviction of a subsequent crime, under the following circumstances:

At various times from 1954 to 1958 the defendant was indicted on six bills charging abortion and two bills charging conspiracy to commit abortion.

On February 24, 1959, he pleaded guilty to all eight bills before Judge CHUDOFF, who placed him on probation for twenty-three months on one of the bills (June

[ 201 Pa. Super. Page 389]

Sessions 1954, No. 1135) and suspended the imposition of sentence on the other bills.

On August 30, 1960, the defendant again committed the crime of abortion.

On January 24, 1961, the probationary period imposed by Judge CHUDOFF on bill No. 1135 expired and the Probation Department of the Court of Quarter Sessions of Philadelphia County terminated supervision of the appellant.

In June 1961, the defendant was indicted for the abortion of August 30, 1960.

On January 4, 1963, the appellant was convicted of the 1960 abortion by Judge ULLMAN sitting without a jury. Following this conviction Judge ULLMAN placed the defendant upon probation for a period of three years.

On January 18, 1963, after a hearing, Judge CHUDOFF "vacated" the suspended sentence and imposed a sentence of eighteen months to three years in the Eastern Penitentiary on each of the five bills charging abortion as to which sentence had been suspended on February 24, 1959, the sentences to run concurrently. The judge took no action with regard to the bill upon which he had placed the defendant on probation.

The defendant raises the following questions:

1. Where a judge imposes probation on one bill and suspends sentence on all of the remaining bills as to which pleas are entered before him at the same time, can he, two years after the probationary period on the first bill has expired, impose a prison sentence on the bills on which sentence had been originally suspended?

2. Can the court impose a prison sentence four years after the entry of a guilty plea?

Suspension of sentence is generally held to be a common law power of the court and it is out of this ancient practice of suspending sentence that the system of probation was developed. Pigeon, Probation

[ 201 Pa. Super. Page 390]

    and Parole (National Probation Association, 1942), p. 80. In Massachusetts, where the first probation system was established, it was done under the common law power of suspension without any statutory authority. Cosulich, Adult Probation Laws of the United States (National Probation Association, 1940), p. 7.

Whether or not this common law power existed in Pennsylvania, it was "long... in vogue in this... state" prior to the authorization of probation. Commonwealth ex rel. Wilhelm v. Morgan, 278 Pa. 395, 397, 123 A. 337, 338 (1924). In Pennsylvania probation is a creature of statute, having been first authorized for adults by the Act of May 10, 1909, P.L. 495, § 1, which was replaced by the Act of June 19, 1911, P.L. 1055, 19 PS § 1051. This act gives the court the power, under specified conditions, "to suspend the imposing of the sentence, and place the defendant on probation for a definite period, on such terms and ...


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