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COMMONWEALTH v. ALLEN (06/11/70)

decided: June 11, 1970.

COMMONWEALTH
v.
ALLEN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1965, Nos. 771 and 772, in case of Commonwealth of Pennsylvania v. Archie Hoyle Allen.

COUNSEL

John W. Packel, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellant.

James D. Crawford, Deputy District Attorney, with him Albert L. Becker, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Hoffman, J. Spaulding, J., joins in this dissenting opinion.

Author: Per Curiam

[ 217 Pa. Super. Page 60]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant was indicted on two bills: No. 771 December Term, 1965, charging assault and battery; No. 772 December Term, 1965, charging assault with intent to rob and robbery. Appellant was subsequently tried on both bills before Judge Kallick, who found appellant guilty on both bills. Judge Kallick suspended sentence on No. 771 and sentenced appellant to five to ten years on No. 772. Appellant then filed motions for new trial, which motions were granted. He then pleaded guilty to both bills before Judge Stout. Judge Stout sentenced him to two-and-a-half to eight years on No. 771 and one to two years on No. 772, the sentences to run concurrently.

The notes of testimony of the sentencing read as follows: "The Court: On Bill No. 771, the sentence of the Court is not less than two and a half years nor more than eight years. On Bill No. 772, the sentence of the Court is not less than one year nor more than two years, to run concurrently." The sentences, as recorded on the bills themselves, are identical with those announced orally.

Eleven months thereafter, appellant filed a petition for post-conviction relief, alleging among other things that his sentence on Bill No. 771 was unlawful. Three months later, Judge Stout held a hearing. At the conclusion thereof, she said: "Obviously I didn't intend to give him two and a half to eight ...


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