Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1971, Nos. 554, 555, and 556, in case of Commonwealth of Pennsylvania v. William H. Foster.
John W. Packel, Assistant Defender, with him Vincent J. Ziccardi, Defender, for appellant.
David Richman, Assistant District Attorney, with him F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Spaeth, J., dissents. Hoffman, J., did not participate in the consideration or decision of this case.
[ 229 Pa. Super. Page 270]
On August 10, 1972, the appellant appeared for trial upon indictments charging burglary, aggravated robbery and assault with intent to kill. After a jury waiver colloquy and the taking of testimony, the court found the appellant not guilty of aggravated robbery, but guilty of burglary and assault with intent to kill.
[ 229 Pa. Super. Page 271]
Thereafter the court and counsel discussed sentencing. At one point during the discussion the court announced that it was going to sentence the appellant to concurrent three to five year terms. Later, when defense counsel requested a presentence investigation, the court stated: "That would not change my sentence; he is already sentenced." The assistant district attorney then informed the court that a three to five year sentence would be unlawful under the Act of September 26, 1951, P. L. 1460, § 1, 19 P.S. § 1057, which provides that the minimum term may not be more than one half of the maximum. Realizing its error, the court then announced a three to six year term. While no direct appeal was then taken, the appellant was subsequently granted leave to file an appeal nunc pro tunc.
The appellant contends that the court's first announced sentence was a sentence imposed within the purview of the Double Jeopardy Clause of the Fifth Amendment. From this premise the appellant argues that the amended sentence ran afoul of our Supreme Court's recent decision in Commonwealth v. Silverman, 442 Pa. 211 (1971). We disagree.
The courts of Pennsylvania have consistently maintained that "[o]ral statements made by the judge in passing sentence, but not incorporated in the written judgment signed by him, are no part of the judgment of sentence." Commonwealth ex rel. Marelia v. Hill, 177 Pa. Superior Ct. 520, 522 (1954); Commonwealth ex rel. Scoleri v. Burke, 171 Pa. Superior Ct. 285, 288 (1952). See also Commonwealth v. Mount, 172 Pa. Superior Ct. 258 (1953); Commonwealth ex rel. Hoban v. Burke, 172 Pa. Superior Ct. 21 (1952). As Justice Cardozo has said: "The only sentence known to the law is the sentence or judgment entered upon the records of the court."*fn1 Most recently, the United States Court of
[ 229 Pa. Super. Page 272]
Appeals for the Third Circuit had occasion to treat a similar question with regard to when a sentence is imposed in Pennsylvania. That learned court concluded: "Far from denying any constitutional rights of petitioner, the Superior Court applied the established rule in Pennsylvania that a sentence, like any other judgment, is to be construed so as to give effect to the intention of the sentencing judge and that to determine this intention the court will limit itself to the language of the judgment despite oral statements of the sentencing judge which are not incorporated in it."*fn2
Since, under the long-standing law in Pennsylvania and numerous other jurisdictions,*fn3 there has been only one sentence imposed in the instant case, the ...