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COMMONWEALTH PENNSYLVANIA v. EARL M. RUTHERFORD (12/28/77)

decided: December 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
EARL M. RUTHERFORD, JR., APPELLANT



No. 523 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal, imposed October 31, 1975 at No. 381 of 1970.

COUNSEL

Richard R. Fink, First Assistant Public Defender, Doylestown, with him Eugene A. Kestenbaum, Assistant Public Defender, Doylestown, for appellant.

Peter F. Schenck, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring opinion in which Jacobs, J., joins. Spaeth, J., files a concurring and dissenting opinion in which Hoffman, J., joins.

Author: Price

[ 252 Pa. Super. Page 349]

On January 27, 1972, following a trial before a judge without a jury, appellant was found guilty of carrying a firearm without a license*fn1 and turning off lights to avoid

[ 252 Pa. Super. Page 350]

    identification.*fn2 Post-verdict motions were filed February 8, 1972 and denied by a court en banc on March 16, 1973. On October 31, 1975, appellant was sentenced on both counts to imprisonment for a term of not less than three months nor more than six months, said sentence to run concurrently with any other sentence having priority in time.

Appellant's first contention is that his sentence must be vacated due to an unexplained delay of over two years and seven months between denial of his post-trial motions and his sentencing. However, appellant did not bring this matter to the attention of the lower court at the time of sentencing,*fn3 and the claim may thus be deemed waived. See Commonwealth v. Strand, 464 Pa. 544, 347 A.2d 675 (1975); Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974).

Even were we to reach appellant's sentencing claim on the merits, the result would be the same. Appellant maintains that two cases from this court require that the sentence herein be vacated, Commonwealth v. Giovengo, 188 Pa. Super. 220, 146 A.2d 629 (1958) and Commonwealth v. Stewart, 221 Pa. Super. 1, 289 A.2d 126 (1972). In Giovengo, the appellant pled guilty to charges in Franklin County, sentence was deferred and he was turned over to Allegheny County officials to face other charges. The appellant was not returned for sentencing on the Franklin County guilty pleas until three years later. In response to the appellant's assertion that this delay deprived him of his right to a speedy trial and due process of law, the court held "that in Pennsylvania a sentence may be suspended (footnote omitted) or deferred for a period of time equal to the maximum term for which the defendant might have been sentenced, provided proper reasons are present to justify the delay."

[ 252 Pa. Super. Page 351]

    from the handle were missing. Several pieces of plastic which fit the handle of the pistol were found in appellant's lap.

Appellant asserts that under Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968) and a number of subsequent cases, the Commonwealth's case was defective in that it did not establish his intent to exercise control over the pistol. Because the weapon was not found on appellant's person the Commonwealth had to prove constructive possession, the requisite elements of which are "'. . . the power of control over the weapon and the intention to exercise this control.'" Commonwealth v. Armstead, 452 Pa. 49, 51, 305 A.2d 1, 2 (1973), quoting Commonwealth v. Townsend, supra 428 Pa. at 284, 237 A.2d at 194. It is evident that appellant had the ability to control the weapon. Upon review of the cases cited by appellant and comparison of the facts ...


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