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COMMONWEALTH v. DUFF (11/14/68)

SUPERIOR COURT OF PENNSYLVANIA


decided: November 14, 1968.

COMMONWEALTH
v.
DUFF, APPELLANT

Appeal from judgment of sentence of Court of Oyer and Terminer of Montgomery County, Sept. T., 1967, No. 180, in case of Commonwealth of Pennsylvania v. Thomas A. Duff.

COUNSEL

David N. Brook, Assistant Public Defender, for appellant.

Richard A. Devlin, Assistant District Attorney, with him Henry T. Crocker, Assistant District Attorney, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Dissenting Opinion by Hoffman, J.

Author: Per Curiam

[ 213 Pa. Super. Page 248]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

On April 5, 1968, appellant was sentenced to imprisonment for not less than 1 1/2 nor more than 6 years.

Just before imposing sentence, the court said:

"While I am not taking into account the charges that are presently lodged against them (the defendants),

[ 213 Pa. Super. Page 249]

I can't close my eyes to the fact that there are outstanding charges." (N.T. 17)

The ambiguity of this statement is apparent. Inferentially, there is reason to believe that the court did give some weight to the outstanding indictments. This was clearly error.

Accordingly, I would remand this case to the court below for resentencing.

19681114

© 1998 VersusLaw Inc.



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