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COMMONWEALTH v. PRISTAS (09/15/72)

decided: September 15, 1972.

COMMONWEALTH
v.
PRISTAS, APPELLANT



Appeal from judgments of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1968, No. 655, in case of Commonwealth of Pennsylvania v. James Pristas.

COUNSEL

John J. Dean and Timothy J. Sullivan, Jr., Assistant Public Defenders, and George H. Ross, Public Defender, for appellant.

Carol Mary Los, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 222 Pa. Super. Page 256]

Appellant James Pristas was convicted as an accessory before and after the fact of malicious mischief by explosive and of conspiracy to do an unlawful act. The convictions resulted from a jury trial in the Court of Common Pleas of Allegheny County on January 29-30, 1969. This appeal is from the dismissal of appellant's petition by Judge Ralph H. Smith, Jr., the trial judge, under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. 1580 (1965), 19 P.S. ยง 1180.

Appellant contends that he was sentenced twice on the convictions and that the second sentence imposed a greater penalty, in violation of his constitutional rights.*fn1 On July 23, 1969, appellant appeared before the trial court and was sentenced as follows: "The Court: Mr. Pristas, is it true that in 1968 you -- Are you sentenced for three to seven years for aggravated assault and battery with attempt to kill? The Defendant: Yes, Sir . . . . The Court: Are you serving time on that? The Defendant: No. I've put an appeal in on that case. The Court: It's still pending? The Defendant: Still pending, yes . . . . The Court: Mr. Pristas, in the third count of the indictment for which you have been found guilty by the jury of conspiracy to do

[ 222 Pa. Super. Page 257]

    an unlawful act, the Court is going to sentence you to the Western Correctional Diagnostic Center to serve a term of not less than one nor more than two years; and that the first and second counts,*fn2 the Court's going to sentence you to Western Correctional Diagnostic Center to serve not less than one nor more than two years, both counts. The sentence on the first count and third count to run consecutively . . . ." (N.T. 1st Sentencing Hearing, at 10-11.) The trial judge gave no indication of whether his sentence of 2 to 4 years (totaling the consecutive 1 to 2 year sentences on counts one and three) was to run concurrent with or consecutive to the prior sentence.

Subsequently, appellant appeared before the trial court for a second time following his conviction. The notes of testimony, which are entitled "Sentence: August 1, 1969, Before Judge Smith", include the following colloquy: "The Court: . . . [I]n regard to the sentence I gave you. You will recall the sentence. The sentence isn't going to change. The only thing is, I want to make it clear that this sentence does not run concurrently with any other sentence. I understand that there was a sentence imposed which has been appealed. The Defendant: Yes. The Court: . . . But be that as it may, this sentence that I imposed the other day will run separate and distinct from any other sentence, so I want that understood, and I didn't think that I made that clear to you . . . . The Court: And I just want to make sure that you understand my sentence to be served, . . ., and these are not going to be run together, they will be served consecutively."

[ 222 Pa. Super. Page 258]

This Court notes the controlling Pennsylvania law in cases such as the instant appeal involving double jeopardy in several recent decisions. In Commonwealth Page 258} v. Jackson, 218 Pa. Superior Ct. 357, 280 A.2d 422 (1971), we unanimously held that: "In the recent case of Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971), our Supreme Court held that a modification of a sentence imposed on a criminal defendant which increases the punishment constitutes double jeopardy . . . . There is no exception to the Silverman rule even if the increase is allegedly designed to reflect the judge's true intent, or if a 'windfall' to the prisoner may result. Allowing a trial judge to correct his . . . sentence by increasing the prison term cannot be tolerated as a matter of public policy. Commonwealth v. Allen, 443 Pa. 96, 277 A.2d 803 (1971)." 218 Pa. Superior Ct. at 358-359. And, as we stated in Commonwealth v. Hermankevich, 220 Pa. Superior Ct. 197, 201, 286 A.2d 644, 646 (1971): "To say that the change of . . . concurrent sentences to consecutive ones, adding . . . to the maximum terms which form the basis for . . . parole or discharge, is not an increase in . . . sentence, needs no argument". In this case, a change of appellant's sentences from 3 to 7 years and 2 to 4 years running concurrently to 3 to 7 and 2 to 4 years consecutively would obviously be a substantial increase.

The crucial question therefore, is whether the sentence given on July 23, 1969, was changed at the hearing on August 1, 1969. Although the trial court indicated at that hearing that "[t]he sentence isn't going to change", we hold that the sentence imposed on August 1, 1969, did change the valid sentence already imposed on appellant. This increase constituted double ...


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