Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Sept. T., 1968, No. 610, and Feb. T., 1969, Nos. 29 and 68, in case of Commonwealth of Pennsylvania v. James Nelson Wolfe.
Carl Blanchfield, for appellant.
Robert L. Campbell, Assistant District Attorney, with him Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Cercone, JJ. (Spaulding, J., absent). Opinion by Hoffman, J. Watkins, J., dissents.
[ 220 Pa. Super. Page 417]
This is an appeal from the judgment of sentence following appellant's convictions on three indictments, the first charging rape, aggravated assault and battery, and pointing firearms; the second charging burglary, larceny, and receiving stolen goods; and the third charging assault and battery.
Testimony at trial established that appellant entered the home of his brother-in-law and took a hand gun which belonged to the brother-in-law, without his knowledge. The burglary, larceny, and receiving charges against appellant were predicated upon the theft of the hand gun. After taking the gun, appellant then used it in the commission of a rape. The victim of the rape was struck by appellant with the gun during the incident. The other charges were lodged against appellant because of this attack.
Appellant was sentenced on the count of rape to a term of imprisonment of not less than two and one-half nor more than five years. In addition, because of appellant's use of a gun in the commission of the rape, the lower court imposed an additional sentence of five to ten years pursuant to the "gun possession act", 18 P.S. 4416(b).*fn1 This additional sentence was to run
[ 220 Pa. Super. Page 418]
consecutively to the sentence imposed for rape. Sentence on the counts charging aggravated assault and battery, and pointing firearms was suspended by the court.
As to the indictment containing the counts of burglary, larceny, and receiving stolen goods, appellant was sentenced on the second and third count of larceny and receiving stolen goods to concurrent terms of imprisonment of not less than six months nor more than one year on each count, said sentences to run consecutively with the sentence imposed on the first indictment. Appellant was sentenced to not less than six months nor more than one year on the assault and battery count contained in the third indictment, said sentence to run consecutively with the sentence imposed on the second indictment.
Appellant contends in this appeal that (1) the sentence imposed pursuant to 18 P.S. § 4416(b), supra, was not valid, and (2) the concurrent sentences imposed on the larceny and receiving counts ...