No. 172 April Term, 1977, Appeal from the Order Denying Habeas Corpus Relief in the Court of Common Pleas of Washington County, Criminal Division, at No. 23, September, 1976.
Paul R. Gettleman, Pittsburgh, for appellant.
David S. Posner, Assistant District Attorney, Washington, with him Jess D. Costa, District Attorney, Washington, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Watkins, President Judge, and Price, J., dissent. Van der Voort, J., did not participate in the consideration or decision of this case.
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Appellant contends that he is entitled to be discharged because his sentence at No. 23, September Term, 1967, Washington County Court of Common Pleas, has expired. In particular, appellant asserts that the trial court's written order of sentence, entered on September 12, 1969, and specifying a term of imprisonment of two and one-half to five years, must be construed as concurrent with prior sentences in the absence of an express indication to the contrary in the written order. We agree and would, therefore, order appellant discharged from the Judgment of Sentence imposed at No. 23, September Term, 1967.
On August 13, 1968, a Washington County Court of Common Pleas judge imposed concurrent two and one-half to five years' terms of imprisonment upon appellant for convictions of rape and burglary. On February 7, 1969, a jury found appellant guilty of larceny of a motor vehicle. On September 12, 1969, the same judge who imposed the prior concurrent sentences conducted a sentencing hearing. The following colloquy between the court and appellant's counsel ensued:
"The Court: All right. Sentence of the Court is that the defendant pay the costs of prosecution, be committed to the
[ 249 Pa. Super. Page 430]
Western Pennsylvania Correctional Diagnostic and Classification Center where he will be assigned by the Deputy Commissioner for treatment to the proper state institution where he shall serve two and one-half (2 1/2) to five (5) years.
"Let the record show that we will not require that he be sent to the Western Pennsylvania Correctional Diagnostic Center from here but we will at this time order his return to Graterford to the institution from which he was brought for the purpose of the sentencing, there to complete the sentence he is now serving.
"Mr. Goldfarb: Your Honor, I would like to ask, when is this sentence to start to run?
"The Court: This sentence will automatically be calculated by the Pennsylvania Parole authorities and it will begin to run when the ...