Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, May T., 1970, No. 4129, in case of Commonwealth of Pennsylvania v. James Arthur Green.
John R. Cook, Trial Defender, John J. Dean, Chief, Appellate Division, and George H. Ross, Public Defender, for appellant.
Robert L. Eberhardt, Assistant District Attorney, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Spaeth, J., concurs in the result.
[ 232 Pa. Super. Page 556]
This appeal arises from the denial of appellant's Post Conviction Hearing Act petition after a hearing thereon. Appellant's sole contention herein is that he was twice sentenced for the same offense in violation of the Fifth Amendment's double jeopardy proscription.
In May, 1970, appellant was indicted on a bill charging both possession and control of narcotic drugs and dealing in narcotic drugs. After a trial without jury, the court found appellant guilty of dealing in narcotic drugs based upon his sale of a packet of heroin to an undercover policeman. The court then announced that it would sentence appellant to five years, that sentence to run consecutive to a sentence appellant was then serving. At no time was this "sentence" recorded on the indictment. Shortly thereafter the court was informed that the sentence, as stated, would contravene the mandates of the relevant section of The Drug, Device and Cosmetic Act,*fn1 which required that appellant "undergo imprisonment
[ 232 Pa. Super. Page 557]
by separate or solitary confinement at labor for an indeterminate term having a minimum of five (5) years and a maximum of twenty (20) years. . . ." Realizing its error, the court recalled the appellant within two hours of his prior appearance, and imposed the sentence statutorily required. Thus, appellant now contends that the court violated the double jeopardy clause of the Fifth Amendment when it sentenced him in compliance with the statute. See, e.g., Commonwealth v. Allen, 443 Pa. 96 (1971).
We believe that appellant's claim must fail because of a fallacy in its initial premise: that a first sentence of five years was imposed prior to the imposition of the five to twenty year term.
The instant case is virtually indistinguishable from Commonwealth v. Foster, 229 Pa. Superior Ct. 269 (1974) where the trial court announced a sentence of three to five years in the presence of the defendant. Defense counsel in that case then requested a presentence investigation, whereupon the court stated:
"That would not change my sentence; he is already sentenced."
At that point the assistant district attorney informed the court that a three to five year sentence would be unlawful because the minimum sentence would be more than one-half of the maximum. The court thereupon corrected its error and sentenced the defendant to a three to six year term. As in the instant case, the latter sentence was the only one ever entered on the indictment or ...