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COMMONWEALTH v. ZELNICK (11/13/63)

November 13, 1963

COMMONWEALTH
v.
ZELNICK, APPELLANT.



Appeals, Nos. 290, 291, and 292, Oct. T., 1963, from judgments of Court of Quarter Sessions of Delaware County, March T., 1962, Nos. 334, 335, and 336, in case of Commonwealth of Pennsylvania v. Richard Zelnick. Judgments affirmed.

COUNSEL

D. T. Spagnoletti, for appellant.

J. Harold Hughes, Assistant District Attorney, with him Ralph B. D'Iorio, First Assistant District Attorney, and Jacques H. Fox, District Attorney, for appellee.

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

Author: Rhodes

[ 202 Pa. Super. Page 130]

OPINION BY RHODES, P.J.

Appellant was indicted on three bills of indictment - No. 335, March Sessions, 1962, in the Court of Quarter Sessions of Delaware County, charging possession of burglary tools; bill No. 334, charging burglary and larceny; and bill No. 336, charging the receiving of stolen goods. Appellant pleaded not guilty, waived a jury trial, and was tried on February 27, 1963, before President Judge SWENEY. He was convicted on all three charges. His motions for a new trial and in arrest of judgment were argued before the court in banc which denied the motions on May 31, 1963.

Appellant claims that the sentences were excessive and should be reduced on appeal. On June 13, 1963, the court imposed a sentence on bill No. 335 (possession of burglary tools) of not less than one year nor more than three years. Sentence on bill No. 334 (burglary and larceny), and sentence on bill No. 336 (receiving stolen goods) were suspended. However, on the same day and within the term, the court changed the sentences as follows: On bill No. 334 (burglary) the sentence of the court was that Richard Zelnick pay a fine of $1,000 and undergo imprisonment in the Eastern State Penitentiary, at separate and solitary confinement, for a period of not less than two years nor more than four years, and stand committed until that sentence be complied with. On bill No. 335 (possession of burglary tools) the sentence of the court was that Richard Zelnick pay a fine of $100, pay the costs of prosecution, and undergo imprisonment in the Eastern State Penitentiary for a period of not less than

[ 202 Pa. Super. Page 131]

    eighteen months nor more than three years, and that he stand committed until this sentence be complied with. Sentences on bill No. 334 and bill No. 335 are to be served consecutively. Sentence on bill No. 336 remains suspended.

Appellant did not attack the sentences on his motions for a new trial and in arrest of judgment in the court below, and therefore the matter may not be raised for the first time on appeal. Com. v. Mays, 182 Pa. Superior Ct. 130, 126 A.2d 530; Com. v. Gomori, 192 Pa. Superior Ct. 325, 330, 161 A.2d 649; Com. v. Clark, 198 Pa. Superior Ct. 64, 67, 181 A.2d 859.

The recorded sentences are controlling. "'The only sentence known to the law is the sentence or judgment entered upon the records of the court.'" Com ex rel. Scoleri v. Burke, 171 Pa. Superior Ct. 285, 287, 90 A.2d 847, 848. The court has full power to reconsider the original sentences and to reduce or increase them so long as the term during which the original sentence was imposed had not expired.*fn1 Com. ex rel. Gaynor v. Maroney, 199 Pa. Superior Ct. 81, 83, 184 A.2d 409.

It is firmly established that the extent of sentence is a matter within the discretion of the trial judge and will not be disturbed if within the statutory limits. Com. v. Downer, 161 Pa. Superior Ct. 339, 344, 53 A.2d 897; Com. v. Pouls, 198 Pa. Superior Ct. 595, 601, 182 A.2d 261. Although we have the power to modify a sentence which is manifestly excessive and inflicts a punishment which is too severe, the record here does not disclose any facts which would remove the present appeal from ...


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