Appeal from judgment of Court of Oyer and Terminer of Allegheny County, Feb. T., 1959, No. 49, in case of Commonwealth of Pennsylvania v. Ralph Wiggins.
Robert D. Repasky, for appellant.
Edwin J. Martin, Assistant District Attorney, with him Charles B. Watkins, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Wright, J., absent). Opinion by Hoffman, J.
[ 211 Pa. Super. Page 466]
Defendant, Ralph Wiggins, was tried on five charges of burglary. He pleaded guilty to two bills and was adjudged guilty on the remaining three. The lower court deferred sentencing pending a mental examination for defendant. On March 4, 1959, pursuant to the report on defendant's mental status, defendant was committed to the Pennsylvania School for Defective Delinquents on Bill No. 49, February Sessions, 1959. The judge noted on that Bill: "And now, Mar. 4, 1959, sentence suspended on payment of costs by county by reason of commitment of Deft. Ralph Wiggins to the Penna. School for Defective Delinquents at Misc. No. 29 Feb., 1959."
Defendant petitioned for post-conviction relief, and a hearing was held on October 14, 1966. On February 28, 1967, the petition was granted and the commitment to the Pennsylvania School for Defective Delinquents, on Bill No. 49, was held illegal on the ground that defendant was denied the right to examine the doctors who had examined him.
On March 13, 1967, defendant was resentenced, with counsel, on Bill No. 49, to a term of not less than
[ 211 Pa. Super. Page 467]
eight years and two months and not more than sixteen years and four months. Defendant was committed to the State Correctional Institution at Dallas to serve this sentence.
Defendant contends that sentence was indefinitely suspended on Bill No. 49, and, therefore, no sentence can be legally imposed after the term of court has expired. The reliance placed upon Commonwealth v. Duff, 414 Pa. 471, 200 A.2d 773 (1964), however, is unwarranted.
The Duff case condemned the practice of suspending sentences indefinitely and later vacating them for the purpose of imposing a prison term. See Commonwealth ex rel. Perrotta v. Myers, 203 Pa. Superior Ct. 287, 201 A.2d 292 (1964); Commonwealth ex rel. Lepera v. Rundle, 205 Pa. Superior Ct. 251, 208 A.2d 874 (1965); Commonwealth v. Hoffman, 210 Pa. Superior Ct. 48, 232 A.2d 19 (1967). As our Court stated in Commonwealth v. Hoffman, supra, "In each of [these] cases, simply stated, there were companion Bills A and B. An initial suspension of sentence on Bill A was later vacated and prison sentence imposed following a correction of the sentence on Bill B. We held that the correction of the sentence on Bill B was proper, but that the sentence belatedly imposed on Bill A was invalid."
The original commitment in the instant case, however, must not be construed as a suspended sentence, but rather as the actual imposition of a prison term. This is true despite the use of the ...