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COMMONWEALTH v. TISDALE (03/31/75)

decided: March 31, 1975.

COMMONWEALTH
v.
TISDALE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1973, Nos. 64 and 65, in case of Commonwealth of Pennsylvania v. Bernard Tisdale.

COUNSEL

Marilyn J. Gelb, for appellant.

Marianne E. Cox, Assistant District Attorney, with her Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Jacobs, J. Van der Voort, J., did not participate in the consideration or decision of this case. Concurring and Dissenting Opinion by Spaeth, J. Hoffman, J., joins in this opinion.

Author: Jacobs

[ 233 Pa. Super. Page 79]

Appellant challenges the procedures involved in the imposition of his sentence by the court below. Specifically, he claims that he was doubly punished for the commission of one offense and that the lower court abused its discretion by injecting into its consideration of the sentence evidence of a crime for which appellant was acquitted. We find no merit in either argument and affirm the judgment of sentence of the lower court.

On July 31, 1973, appellant was arrested in connection with the killing of Edward Newton. During the arrest, it was discovered that appellant was carrying an illegal firearm. After being charged with murder and manslaughter, two counts of violating the Uniform Firearms Act,*fn1 two counts of possessing instruments of crime,*fn2 and one count of possession of a prohibited offensive weapon,*fn3 the case proceeded to trial before the court, a jury having been waived. At the conclusion of the trial, the court granted appellant's motion for a directed verdict on the murder and manslaughter charge, and also on the two counts of possessing instruments of crime. However, the court found appellant guilty of the two counts of violating the Uniform Firearms Act and possession of a prohibited offensive weapon. Sentencing was postponed to permit the undertaking of a pre-sentence investigation and report. Although appellant was informed of his right to file post-verdict motions, none were forthcoming. This fact was confirmed at the sentencing hearing by appellant's counsel.

After hearing testimony in favor of appellant from his mother and a friend, the court below sentenced appellant

[ 233 Pa. Super. Page 80]

    to one to two years imprisonment for violation of the Uniform Firearms Act and one to two years imprisonment for carrying a prohibited offensive weapon. The sentences were directed by the court to run consecutively. Afterwards in discussing the sentence, the court below made the following statement:

"I know under the law there were findings made by the Court. But I am convinced that this young man was very responsible for the death of that man. Very well. That is it." Notes of Testimony of hearing on June 10, 1974, at 15.

Defense counsel immediately objected, but the court explained that he realized that he had directed the verdict on the murder charge but felt that the murder charge and other arrests demonstrated that appellant was a "dangerous young man." However, appellant disputed one arrest made when he was a juvenile to which the court was referring. Consequently, the court postponed the hearing for two days so that the arrest could be investigated. The court offered to reconsider the sentence at that time. At the hearing two days later, it was established that appellant had in fact been arrested as a juvenile but never adjudicated delinquent. Accordingly, the lower court let the original sentence stand and this appeal followed.

Appellant first argues that the imposition of sentences on the two weapons charges (violation of the Uniform Firearms Act and possession of a prohibited offensive weapon) were illegal as constituting double punishment for one offense. Notwithstanding the possible merit in this argument, we must first consider whether this issue was waived by not being raised in the lower court. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 275 (1974). Our review of the record discloses that: (1) no objection was made to the lower ...


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