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COMMONWEALTH v. PRESOGNA (12/11/73)

decided: December 11, 1973.

COMMONWEALTH
v.
PRESOGNA, APPELLANT



Appeal from order of Court of Common Pleas of Erie County, No. 1942 of 1972, in case of Commonwealth of Pennsylvania v. James Presogna.

COUNSEL

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.

Author: Hoffman

[ 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 ...


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