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COMMONWEALTH v. HORSMAN (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
HORSMAN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Clearfield County, No. 74-987-CRA, in case of Commonwealth of Pennsylvania v. William Wiles Horsman, a/k/a Bobby J. Richey, and a/k/a Bobby J. Richards.

COUNSEL

John Sughrue, Public Defender, with him Richard H. Milgrub and Timothy E. Durant, Assistant Public Defenders, for appellant.

Richard A. Bell, District Attorney, with him William C. Kriner, Assistant District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Van der Voort, J. Watkins, P.j., joins in this dissenting opinion.

Author: Hoffman

[ 239 Pa. Super. Page 536]

Appellant contends that the modification of his sentence from one to seven years' imprisonment to 30 days to seven years' imprisonment was improper. He argues, accordingly, that the latter sentence is invalid and that the original sentence should be reinstated.

The record explains appellant's seemingly incredible objection to the reduction of his sentence. Appellant had been convicted of murder in the state of Alabama and sentenced to a term of life imprisonment. At some unspecified date, he escaped from the penal institution where he was incarcerated, and he eventually came to Pennsylvania. On November 20, 1974, Officer LaBorde of the Sandy Township Police Department issued a criminal complaint charging appellant with the theft of an automobile. On March 5, 1975, appellant entered a plea of guilty*fn1 to a charge of theft by unlawful taking.*fn2 Because the stolen property was an automobile, the theft constituted a felony of the third degree,*fn3 punishable by a maximum sentence of seven years.*fn4

[ 239 Pa. Super. Page 537]

The record of the sentencing hearing reveals that appellant requested that the maximum term of imprisonment be imposed. Defense counsel informed the trial judge that the reason for this unusual request was appellant's desire to avoid incarceration in Alabama for as long as possible. The court was also informed that as of March 5, 1975, Alabama had not instituted extradition proceedings. The court agreed to impose a maximum term of seven years, but refused to impose the requested minimum of three and one-half years:

"BY THE COURT: You're asking for three-and-a-half years in prison for stealing a car without any prior record or knowledge of this Court?

"BY THE [ASSISTANT DISTRICT ATTORNEY]: We do have knowledge of a prior record, not of this State, but he is a convicted murderer in the State of Alabama.

"BY THE COURT: That's Alabama's problem. Is he out as an escapee or has he ...


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