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COMMONWEALTH PENNSYLVANIA v. MICHAEL CALL (10/06/77)

decided: October 6, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL CALL, APPELLANT



No. 81, October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Montgomery County, No. 148, June Term, 1970 Criminal Section.

COUNSEL

Harry L. Green, Jr., First Assistant Public Defender, Lansdale, for appellant.

James A. Cunningham, Assistant District Attorney, Pottstown, and Eric J. Cox, Assistant District Attorney, Conshohocken, for Commonwealth, appellee.

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

Author: Hoffman

[ 249 Pa. Super. Page 513]

Appellant contends that the lower court lacked the power to revoke his parole and to recommit him. We agree, and, vacate the erroneously imposed judgments of sentence.

On May 29, 1970, appellant was arrested in Montgomery County and charged with robbery in indictment number 1835; and aggravated assault in indictment number 1836. Appellant pleaded guilty to both bills. The court sentenced

[ 249 Pa. Super. Page 514]

    him to a three to fifty-nine months' term of imprisonment on # 1835 and to a concurrent term of three years' probation on # 1836. In December 1971, the Parole and Pardons Board granted appellant parole on # 1835. Thereafter, he served parole and probation concurrently. In April, 1972, appellant fled the state of Pennsylvania; subsequently a bench warrant was issued for him. While absent from Pennsylvania, appellant was arrested and convicted of a federal offense. The federal court sentenced him to a one year term of imprisonment. Appellant returned to Pennsylvania in February, 1975. On February 28, 1975, appellant was found guilty on an unrelated robbery charge. The alleged incident occurred in 1969, in Montgomery County, prior to the charges in the instant case. Judge Vogel sentenced appellant to a term of imprisonment of two to five years. On March 27, 1975, after a hearing, the lower court revoked appellant's probation and imposed the following sentence:

"Now, this March 27th, 1975, we find you guilty of probation violation under the probation on bills No. 1835 and 1836 of 1970, charging you with robbery and beating and striking and ill-using, aggravated assault and battery. Therefore, the sentences imposed on bill No. 1836 of 1970 and 1835 of 1970 are hereby revoked and instead, you, Michael Call, on bill No. 1835 are sentenced to imprisonment for not less than two years or more than five years in such State Correctional Institution as shall be designated by the Deputy Commissioner for Treatment, Bureau of Corrections, and sent to the Correctional Diagnostic and Classification Center at Graterford for this purpose, this sentence to run consecutive to the sentence you are now performing under the sentence of Judge Vogel in -- and I will have to supply the number of the case for you, the one Judge Vogel just sentenced the two to five years. . . . On bill No. 1836 of 1970, you, Michael Call, having pleaded guilty to assault and battery, are sentenced to imprisonment -- aggravated assault and battery -- are sentenced to imprisonment of not less than eighteen months nor more than three years, this sentence to run

[ 249 Pa. Super. Page 515]

    consecutive to the sentence imposed on bill No. 1835 of 1970, and consecutive to the sentence which you are now serving under Judge Vogel's sentence of No. -- whatever that number is."

On May 2, 1975, pursuant to appellant's petition the lower court reconsidered the sentence imposed in March. The court then ...


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