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COMMONWEALTH PENNSYLVANIA v. WAYNE JOHN HORNE (03/31/77)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 31, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
WAYNE JOHN HORNE, APPELLANT

Appeal from the Judgment of Sentence imposed, January 27, 1976, of the Court of Common Pleas, Trial Division, Criminal Section for the County of Phila., at Nos. 1380, 1381 February Term, 1975. NO. 1132 OCTOBER TERM, 1976.

COUNSEL

Louis C. Johanson, Philadelphia, for appellant.

Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Per Curiam

[ 247 Pa. Super. Page 35]

It appearing that consecutive sentences have been imposed separately (1) for the charge of rape and (2) for the charge of statutory rape arising out of the same single episode, the sentences are vacated. This case is remanded to the court below for an initial determination of whether or

[ 247 Pa. Super. Page 36]

    not defense counsel was ineffective solely in withdrawing post trial motions. If upon remand, it should be determined that trial counsel was not ineffective in withdrawing post trial motions then the court should reimpose a lawful sentence. If, on the other hand, it is determined that counsel was ineffective with respect to withdrawing post trial motions then the court shall allow the refiling of such post trial motions nunc pro tunc with leave to assert additional reasons. After argument upon the refiled motions has been concluded the court should then make such lawful disposition as it might then determine.

If, in this latter disposition, any conviction or convictions should be sustained then the trial court should reimpose a lawful sentence. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976).

19770331

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