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COMMONWEALTH v. SCHAFFER (03/30/72)

decided: March 30, 1972.

COMMONWEALTH
v.
SCHAFFER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1970, No. 1521, in case of Commonwealth of Pennsylvania v. George Francis Schaffer.

COUNSEL

John W. Packel, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.

Stephen J. Margolin, 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. Dissenting Opinion by Hoffman, J. Montgomery and Spaulding, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 221 Pa. Super. Page 106]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant was convicted of attempted larceny*fn1 and was sentenced to a term of imprisonment of 1-5 years. In this appeal, he raises the sole question of whether his

[ 221 Pa. Super. Page 107]

    sentence was illegal, in that he alleges that his maximum sentence could not exceed two years.

The offense of attempted larceny is a common law offense. Commonwealth ex rel. Swisher v. Ashe, 145 Pa. Superior Ct. 454, 21 A.2d 479 (1941). The penalty for this offense is indicated by the Act of June 24, 1939, P. L. 872, § 1101, 18 P.S. 5101, which provides that "every offense now punishable either by the statute or common law of this Commonwealth and not specifically provided for by this act (1939 Penal Code) shall continue to be an offense punishable as heretofore." This provision of the Act of 1939 was derived from the Act of March 31, 1860, P. L. 382, § 178, which ...


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