Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1958, No. 118, in case of Commonwealth of Pennsylvania v. Devoid Rivers.
Michael L. Levy, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
James T. Owens, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy 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. Opinion by Jacobs, J. Wright, P. J., and Watkins, J., would affirm on the opinion of Judge Stern.
[ 218 Pa. Super. Page 185]
In this case the appellant, Devoid Rivers, was indicted on three bills with one Edward Sable. On bill No. 117 he was charged with assault with intent to rob, on No. 118 he was charged with burglary, and on No. 119 he was charged with conspiracy. He and Sable, together with one Armstrong who was charged with
[ 218 Pa. Super. Page 186]
possession of burglary tools, were tried at the same time. Jury trial was waived and the three defendants were tried, beginning September 8, 1958, before Judge Maurice W. Sporkin. Appellant was at all times represented by counsel.
At the beginning of the trial appellant entered a plea of guilty to bill No. 117. When this was announced the judge said: "Very well, he may so plead. The remaining defendants are pleading not guilty, and have waived a jury trial."
On the second day of trial appellant was called as a witness by the Commonwealth. On direct examination the assistant district attorney asked the appellant if he was in custody awaiting trial on a homicide charge; the appellant said he was. The Commonwealth also asked him about prior convictions, and he admitted convictions of larceny and assault and battery. He was also asked about convictions of larceny and receiving stolen goods while still a juvenile, and convictions of robbery, aggravated assault and battery, and rape. No objection was made by appellant's counsel to any of the questions.
At the close of trial the judge deferred adjudication to a later date. The appellant, and the other defendants, next appeared before the judge on October 15, 1958. At that time the assistant district attorney reminded the judge of the open murder charge against appellant and suggested sentence await the disposition of the murder case. The judge was agreeable and asked if it was a first-degree case, to which the district attorney replied that he thought it could rise to first degree. The district attorney then pointed out that there had been no adjudication on bills No. 118 and No. 119. At that point the following colloquy took place: "The Court: I thought that he pleaded guilty to all bills? Mr. Balka: Not as to bills 118 and 119. Your Honor
[ 218 Pa. Super. Page 187]
deferred adjudication as to those. The Court: As to 118 I will adjudicate him guilty of burglary. As to bill ...