Appeal from order of Court of Common Pleas No. 10 of Philadelphia County, Dec. T., 1965, No. 624, in case of Commonwealth ex rel. Heyward Speaks v. Alfred T. Rundle, Superintendent.
Alan J. Davis, Assistant District Attorney, with him William J. Stevens, Jr., Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for appellant.
Jay S. Gottlieb, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. Opinion by Wright, J. Concurring and Dissenting Opinion by Jacobs, J. Spaulding, J., joins in this opinion. Dissenting Opinion by Hoffman, J.
[ 209 Pa. Super. Page 229]
This is an appeal by the Commonwealth from an order of Court of Common Pleas No. 10 of Philadelphia County, entered May 12, 1966, granting a petition for a writ of habeas corpus and directing that the petitioner, Heyward Speaks, be discharged. The order will be reversed.
On October 21, 1966, in the Court of Quarter Sessions of Philadelphia County at Nos. 938 to 988 October Sessions 1966, true bills were returned on fifty-one indictments charging Heyward Speaks with various criminal offenses. Twenty-two of these bills charged either rape or assault with intent to ravish and aggravated assault and battery, twenty-one charged burglary associated with the rapes and assaults, four charged aggravated robbery, one mayhem, one sodomy, one unlawful impersonation of an officer, and one carrying a concealed deadly weapon. Trial was delayed pending psychiatric diagnosis to determine whether Speaks was competent to confer with counsel for the preparation of his defense. On November 25, 1958, after trial non-jury before Judge Waters, Speaks was found guilty on fifty of the bills.*fn1 Sentence was deferred "pending medical examination prior to sentencing under Barr-Walker Act". On March 2, 1959, a report of this examination was given to the court. On April 3, 1959, the trial judge sentenced Speaks to the Farview State
[ 209 Pa. Super. Page 230]
Hospital for a period of one day to life. This sentence was written on Bill No. 938, which charged assault with intent to ravish and aggravated assault and battery. On each of the other forty-nine bills, after the printed word "Sentence", the trial judge wrote the following: "See sentence on Bill No. 938 October 1955".
On February 16, 1962, in Court of Common Pleas No. 4 at No. 3706 December Term 1961, Speaks presented a petition for a writ of habeas corpus. On November 21, 1962, this petition was granted by Judge Gleeson on the ground that Speaks had been confined for a period of more than ninety days before the report of his psychiatric examination was presented to the court and sentences imposed.*fn2 Judge Gleeson ordered that Speaks be brought before Judge Waters "for further proceedings". On May 17, 1963, treating Judge Gleeson's order as a vacation of the prior sentences, Judge Waters imposed consecutive terms of not less than five nor more than fifteen years upon Bills Nos. 940 and 970, each of which bills represented a conviction for rape. Sentence was then suspended on the other forty-eight bills, including Bill No. 938.
On December 13, 1965, in Court of Common Pleas No. 10 at No. 624 December Term 1965, Speaks filed
[ 209 Pa. Super. Page 231]
the petition with which we are presently concerned. He alleged illegal confinement on the ground that the court below had no authority, on May 17, 1963, to impose sentences on Bills Nos. 940 and 970 because, on April 3, 1959, sentence on these bills had been suspended. Judge Jamieson concluded "with great reluctance" that sentence had originally been suspended by Judge Waters on Bills Nos. 940 and 970, and therefore granted the petition on the authority of Commonwealth v. Duff, 414 Pa. 471, 200 A.2d 773, reversing Commonwealth v. Duff, 201 Pa. Superior Ct. 387, 192 A.2d 258, in which three members of the Superior ...