decided: December 11, 1973.
Appeal from order of Court of Common Pleas of Erie County, No. 1942 of 1972, in case of Commonwealth of Pennsylvania v. James Presogna.
Stephen H. Hutzelman, for appellant.
Michael Veshecco, Second Assistant District Attorney, Bernard L. Siegel, First Assistant District Attorney, and R. Gordon Kennedy, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Hoffman, J.
[ 226 Pa. Super. Page 485]
The sole issue in this appeal is whether an appellant is entitled to credit for time served on a reversed conviction toward a sentence he is serving on an unrelated charge.
In November, 1971, appellant was found guilty by a jury on a charge of assault and battery. He filed an appeal to this Court, and we reversed, holding that the trial court had erred when it excluded evidence of self-defense on the grounds that the situation did not involve
[ 226 Pa. Super. Page 486]
"a threat of death or serious bodily harm." Commonwealth v. Presogna, 221 Pa. Superior Ct. 431, 435, 292 A.2d 476, 478 (1972). Presogna was not retried on the assault and battery charge. At the time of his release, appellant had already served nearly one year of his prison sentence.
On January 23, 1973, appellant entered a plea of guilty to a drug charge. He was sentenced to a term of imprisonment for a period of 23 1/2 months.
The fine and costs which appellant had paid on the assault and battery charges were refunded to him and then applied to the fine and costs on the drug conviction. Appellant filed a Post-Conviction Hearing petition, asking that the time he spent in prison on the assault and battery charge, which was later reversed, be applied to the drug sentence. This petition was dismissed on April 4, 1973, without an evidentiary hearing.
This precise issue is a question of first impression in this Commonwealth. There is only a single statute which provides for the application of time spent in prison to a subsequent conviction. The Act of August 14, 1963, P. L. 841, § 1, 19 P.S. § 898, provides:
"§ 898. Credit, custody prior to sentence
"Any person who has been convicted of an offense in any court in this Commonwealth and sentenced to a term of imprisonment shall be given credit toward the service of his sentence for any days spent in custody on this offense prior to the imposition of his sentence, including any days spent in custody on this offense prior to the entry of bail." (Emphasis added.)
In seeking to do justice, this Court has construed the above statutory language to prevent an appellant from being incarcerated for a period greater than the offense requires. In Commonwealth v. Ulmer, 211 Pa. Superior Ct. 193, 238 A.2d 38 (1967), we held that a defendant who served time under an invalid or void sentence for a given offense, and then is sentenced
[ 226 Pa. Super. Page 487]
and constituting an entirely separate and distinct offense. This is not a situation to which our Legislature intended credit to be given, and the express words of the statute belies such an interpretation or application. We shall not act in such a manner as to destroy the Legislative purpose of the statute nor as to reward the criminal thereby diluting society's will as expressed by the judicial process.
The order of the court dismissing appellant's PCHA petition is affirmed.
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