Appeal from order of Superior Court, No. 1067, Oct. T., 1968, affirming order of Court of Common Pleas, Trial Division, of Philadelphia, Aug. T., 1958, Nos. 464 to 480, inclusive, in case of Commonwealth of Pennsylvania v. John Hosendorf.
John F. X. Fenerty, for appellant.
Martin H. Belsky and James D. Crawford, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell and Mr. Justice Eagen concur in the result. Mr. Justice Jones and Mr. Justice Pomeroy dissent.
Appellant, John Hosendorf, was convicted of burglary in 1958. In 1968, he brought post-conviction proceedings, maintaining that his sentence was actually five to ten years rather than the five to twenty years asserted by the Commonwealth authorities. The hearing court denied relief and the Superior Court affirmed per curiam, 214 Pa. Superior Ct. 525, 257 A.2d 281 (1969), Judge Hoffman filing a dissenting opinion, joined by Judge Spaulding. We granted allocatur and now we reverse.
The controversy arises out of the statements of the trial judge, now deceased, at the conclusion of the trial. These are set forth verbatim below:
" I will sentence him to five to twenty years in the Eastern Penitentiary. Have him sent to the Diagnostic Clinic and they will give him help and treatment out there. They are well equipped to do that. If at the end of five years the evidence indicates that he is all right and no longer a menace, of course an application for parole can be made. But the extent of these crimes is so great that we have to have him at least under supervision for a long period of time. That is the best disposition I can think of.
" Five to ten years in the Eastern Penitentiary, and to be sent to the Diagnostic Clinic." (Emphasis added) The bill of indictment bears an endorsement prepared in a clerk's handwriting, but signed by the judge, stating that the sentence is five to twenty years.
The hearing court denied relief, relying upon statements in various Superior Court cases to the effect that the sentence recorded on the indictment controls. See Com. ex rel. Spader v. Myers, 187 Pa. Superior Ct. 654, 145 A.2d 870 (1958); Com. ex rel. Middleton v. Banmiller, 195 Pa. Superior Ct. 45, 169 A.2d 343 (1961); Com. ex rel. Scoleri v. Burke, 171 Pa. Superior Ct. 285, 90 A.2d 847 (1952). As Judge Hoffman stated, these cases are all distinguishable for various reasons. Scoleri and Spader both involve "lumped sentences," where the maximum sentence was, say, ten to twenty, and the court totaled two consecutive sentences and stated that he was sentencing to twenty to forty. When the relator asserted that his sentence was illegal, the court replied that the ten to twenty stamped on the indictment was what counted. Middleton involved sentences on two different indictments, where the notes of testimony, by a typographical error, showed the sentences reversed.
More importantly, as Judge Hoffman points out, all three cases arose on writs of habeas corpus. Both Middleton and Spader rely on ...