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COMMONWEALTH v. FLASHBURG (12/01/75)

decided: December 1, 1975.

COMMONWEALTH
v.
FLASHBURG, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lehigh County, No. 1593 of 1974, in case of Commonwealth of Pennsylvania v. Richard Flashburg, a/k/a Charles R. Winkler, a/k/a Joshua Harrison.

COUNSEL

William H. Platt, Public Defender, for appellant.

James Knoll Gardner, Assistant District Attorney, and George J. Joseph, District Attorney, submitted a brief for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Jacobs, J., dissents.

Author: Price

[ 237 Pa. Super. Page 426]

Although a relatively simple set of facts precipitated this appeal, its resolution has immersed us in a deluge of statutory ambiguity. The issue, quite simply stated, is whether the lower court, indeed any court, had the power between June 6, 1973 and March 30, 1975 to order this appellant, or any criminal defendant, to make restitution as part of a Judgment of Sentence. We hold that there was no such power during that time interval, and, therefore, will reverse.

On December 6, 1973, the appellant, using the name Charles R. Winkler, rented a car from a car-rental agency located in the Allentown-Bethlehem-Easton Airport. Although appellant stated that he only wanted the car for a day, the car was not returned. The agency manager, Mr. Schlauch, discovered that appellant was not Charles R. Winkler, but that identification cards belonging to the real Charles R. Winkler had been stolen. Admirable detective work on the part of Mr. Schlauch resulted in the arrest of appellant and the return of the car on January 23, 1974. On October 9, 1974, appellant pled guilty to charges of theft by deception.

Appellant's sentencing hearing was held on October 30, 1974. The lower court judge, after a lengthy discussion with appellant, learned that appellant had graduated from New York University with a degree in philosophy. He had taken additional courses at the University of Pennsylvania, and had held responsible employment positions. He had also been convicted, in federal court, of transporting stolen securities, and had been sentenced to three years probation. At the time of the sentencing hearing, he was in jail on an unrelated charge, apparently involving narcotics.

At Mr. Schlauch's request, the Commonwealth recommended a sentence requiring appellant to make restitution of $1,215.90 (computed by applying normal rental

[ 237 Pa. Super. Page 427]

    rates to the time the car was gone and to the mileage added to the car's odometer).

Appellant's attorney objected on the grounds that restitution was illegal in this case. Appellant, however, stated that he wanted to make restitution. The court then sentenced appellant to pay the costs of prosecution, to make restitution in the amount of $1,215.90, and to undergo imprisonment for a period of not less than six months nor more than twenty-three months. The sentence of imprisonment was suspended and the appellant was placed on probation for a period of forty-eight months.

On January 22, 1975, after reviewing memoranda submitted by counsel, the court modified its previous order by vacating the order with respect to the amount ordered for restitution, and by ordering restitution in an amount to be determined by the Probation Office of Lehigh County. The court based its ...


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