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COMMONWEALTH v. RISPO (09/15/72)

decided: September 15, 1972.

COMMONWEALTH
v.
RISPO, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1967, Nos. 361, 363 to 366, inclusive, and 368, in case of Commonwealth of Pennsylvania v. Salvatore Rispo.

COUNSEL

Francis S. Wright, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

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

Author: Jacobs

[ 222 Pa. Super. Page 310]

At issue in this appeal is whether defendant has waived his duplicity-of-sentences claim. We hold that the claim has been waived.

The claim arises from defendant's convictions, along with his co-defendants, on three bills of indictment. Each bill charged defendant with blackmail and extortion, the only difference in the bills lying in the particular of the specified date. The evidence at trial showed that on each of the three dates specified in the bills the defendant committed acts of blackmail and extortion, all acts being directed at the same victim and all designed to effect collection of a sum of money in excess of what was actually owed. Following defendant's convictions on the bills, three consecutive sentences were imposed. These sentences were made

[ 222 Pa. Super. Page 311]

    concurrent with three additional sentences given defendant for conspiracy.

On direct appeal to this Court by defendant and his co-defendants the sentences on two of the conspiracy bills were vacated for duplicity, we holding that there had been only one conspiracy. See Commonwealth v. Marino, 213 Pa. Superior Ct. 88, 245 A.2d 868 (1968), cert. denied, 395 U.S. 983 (1969). No issue was raised concerning the possible duplicity of the blackmail-extortion sentences.

The defendant petitioned for allocatur which was denied. See Commonwealth v. Marino, 435 Pa. 245, 246-47, 255 A.2d 911, 913 (1969), cert. denied, 397 U.S. 1077 (1970).*fn1 Next, defendant, with the assistance of counsel, filed a petition for relief under the Post Conviction Hearing Act, 19 P.S. ยง 1180, but was denied relief following a hearing. In neither petition were the blackmail-extortion sentences placed in issue.

Finally, a petition for arrest of sentence was filed alleging, for the first time, that the three sentences for blackmail and extortion are illegal as duplicitous. Relief was denied by the court below and we affirm for the reasons that follow.

In an apparent effort to avoid the bar of waiver applicable to post-conviction proceedings, defendant has styled his challenge as directed at the lawfulness of his sentences. However, we have examined the bills of indictment and the sentences imposed thereon and we conclude that the sentences are per se lawful, each sentence being within the prescribed limits applicable to the offense ...


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