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COMMONWEALTH v. STEWART (03/24/72)

decided: March 24, 1972.

COMMONWEALTH
v.
STEWART, APPELLANT



Appeals from judgment of sentence of Court of Common Pleas of Delaware County, Dec. T., 1960, Nos. 295 to 320, inclusive, in case of Commonwealth of Pennsylvania v. Donald B. Stewart.

COUNSEL

R. Barclay Surrick, Assistant Public Defender, for appellant.

O. Warren Higgins and Ralph B. D'Iorio, Assistant District Attorneys, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., Watkins and Montgomery, JJ., would affirm on the opinion of Judge Reed.

Author: Hoffman

[ 221 Pa. Super. Page 2]

In this direct appeal appellant maintains that he was unlawfully sentenced and urges that the sentences so imposed should be vacated and that he be given in their stead a suspended sentence.

The facts in the case are as follows:

On January 17, 1961, appellant pleaded guilty before the Honorable Judge Toal to a series of burglaries and rapes.

After the pleas were taken, defense counsel informed the court that appellant was due to be tried in Philadelphia on other charges within "the next month to six weeks. Presently he is undergoing various sorts of examinations, the result of none of which we know will constitute a legal defense to any of these; however, they may go a long way in assisting the court in determining

[ 221 Pa. Super. Page 3]

    what type of sentence and to where this defendant should be sentenced when the time comes. In view of these considerations, we would respectfully ask the court to defer sentencing this man until after he comes to trial and his case is disposed of in Philadelphia. Now, of course, I am not asking until after his sentence expires in Philadelphia, but as soon as he is done in Philadelphia he can be brought back here for sentencing, sir".

The District Attorney agreed with this suggestion stating "I think the suggestion that we wait until his case is disposed of by way of sentencing in the City of Philadelphia is a feasible suggestion and the Commonwealth will have no objection, subject to your honor's approval".

The Court responded "[a]ll right, I will direct that the notes of testimony of the matters that are now before the court be transcribed, that the original be filed of record, and that copies be furnished to the district attorney and also counsel for the defendant, so we will have a chronological statement of what has occurred in court up to the present time. On each of these indictments we will defer sentence until further order of the court. Let the record show that we are doing this in a formal manner so that there can be no question as to the passage of time and the ...


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