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COMMONWEALTH v. TESTA. (04/14/64)

April 14, 1964

COMMONWEALTH, APPELLANT,
v.
TESTA.



Appeal, No. 217, Oct. T., 1964, from order of Court of Quarter Sessions of Philadelphia County, feb. T., 1963, No. 685, in case of Commonwealth of Pennsylvania v. John Testa. Order granting new trial reversed and suspension of sentence vacated.

COUNSEL

Burton Satzberg and Thomas M. Reed, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for Commonwealth, appellant.

Sidney Ginsberg, and Mangel and Ginsberg, for appellee.

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

Author: Wright

[ 203 Pa. Super. Page 202]

OPINION BY WRIGHT, J.

The Commonwealth has appealed from an order of the Court of Quarter Sessions of Philadelphia County

[ 203 Pa. Super. Page 203]

    granting a new trial to John Testa some four months after his conviction and sentence. The order must be reversed.

The record discloses that true bills were returned by the Grand Jury of Philadelphia County at February Sessions 1963, on two bills of indictment against John Testa and Emil Makowski. Bill No. 685 charged burglary, larceny, and receiving stolen goods. Bill No. 686 charged conspiracy. On September 18, 1963, following arraignment, the defendants entered pleas of not guilty and waived jury trial. They were each represented by counsel. After hearing testimony, the trial judge found both defendants guilty of burglary and conspiracy. On September 23, 1963, Testa was sentenced on Bill No. 685 to undergo imprisonment in the State Correctional Institution at Philadelphia for a term of not less than one nor more than twenty years to be computed from September 18, 1963. Sentence was suspended as to Makowski on Bill No. 685, and as to both defendants on Bill No. 686. On September 27, 1963, the maximum term of Testa's sentence on Bill No. 685 was amended to read five instead of twenty years.

The proceeding which gives rise to the instant appeal commenced with a petition by Testa "for reconsideration of sentence nunc pro tunc". The date on which this petition was filed does not appear in the record. It was sworn to on December 31, 1963. Following a hearing on January 20, 1964, the court below granted a new trial as to Testa on Bill No. 685. "We believe that we were unduly influenced by Testa's prior criminal record. In the interest of justice we granted a new trial on our own motion." Testa immediately entered a plea of guilty, sentence was suspended, and he was placed on probation for a period of five years.

In the absence of an allegation of fraud or its equivalent, the common law power of the lower court to set aside a judgment ...


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