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COMMONWEALTH v. YOUNG (03/27/73)

decided: March 27, 1973.

COMMONWEALTH
v.
YOUNG, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, March T., 1970, No. 2354, in case of Commonwealth of Pennsylvania v. Edward L. Young.

COUNSEL

Wendell G. Freeland, with him Lichtenstein & Bartiromo, for appellant.

J. Kent Culley, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Wright, P. J., Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. (Watkins, J., absent.) Opinion by Hoffman, J. Wright, P. J., and Cercone, J., would affirm the judgment of the lower court.

Author: Hoffman

[ 223 Pa. Super. Page 448]

In this appeal, we are asked to decide whether a sentencing judge may impose a suspended sentence for an indefinite term, and thereafter resentence appellant to a term of imprisonment after appellant's post-trial motions have been denied.*fn1

[ 223 Pa. Super. Page 449]

On January 4, 1971, appellant was tried without a jury on an indictment at No. 2354 March Sessions, 1970, charging him with possession and control of narcotic drugs. An unrelated indictment at No. 5989 June Sessions, 1970, charging appellant and three co-defendants with possession and control of narcotic drugs was tried at the same time. Appellant was found guilty in both cases.

At sentencing, the trial judge declared the following:

"Let me turn to the case at 5989 June Sessions, 1970. It is the sentence of this Court you pay the costs of prosecution and that you be confined to the State Correctional Institution in Greensburg for a period of not less than one or more than two years. So stand committed. In view of the fact that counsel has indicated that a motion for a new trial will be filed within the prescribed period of time, this sentence is suspended pending the disposition of any motion or motions in arrest of judgment and for motion for a new trial.

"Insofar as proceedings at No. 2354 March Sessions, 1970, are concerned, the sentence of this Court is that you pay the costs of prosecution and that sentence on this indictment be suspended by reason of the sentence imposed at No. 5989 June Sessions, 1970."*fn2 Post-trial motions in both cases were filed on January 7, 1971, after sentencing. Almost a year and one-half later, on

[ 223 Pa. Super. Page 450]

May 19, 1972, the court below entered an Opinion and Order granting the Motion in Arrest of Judgment at No. 5989 June Sessions, 1970, and denying the post-trial ...


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