No. 2073 October Term 1976, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Section, Delaware County, March Sessions, 1975, Nos. 244, 246, 248, 249.
Warren R. Hamilton, Philadelphia, for appellant.
John G. Siegle, Assistant District Attorney, Media, for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., files a Concurring and Dissenting Opinion in which Van der Voort, J., joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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The court is unanimous that on the merits the convictions should be affirmed for the reasons stated in Judge CERCONE's Concurring and Dissenting Opinion. However, JACOBS, P. J., and HOFFMAN, PRICE and SPAETH, JJ., are of the opinion that the judgment of sentence should be vacated and the case remanded for resentencing under Commonwealth v. Lockhart, 223 Pa. Super. 60, 296 A.2d 883 (1972).
CERCONE, Judge, concurring and dissenting.
Following a jury trial appellant and three co-defendants were found guilty of felonious restraint,*fn1 false imprisonment,*fn2
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simple assault,*fn3 and recklessly endangering another person.*fn4 Post-trial motions were denied and appellant was sentenced to the following consecutive terms of imprisonment: simple assault -- one to two years; recklessly endangering another person -- one to two years; false imprisonment -- one to two years; and felonious restraint -- two and one-half to five years.
The record discloses that the events giving rise to appellant's arrest occurred on November 2, 1974, in Chester, Pennsylvania. On that date at approximately 3:30 P.M., Lois Washington and her husband, Samuel, arrived by automobile at the home of Mrs. Washington's mother. Mrs. Washington testified that after her husband parked their car he engaged in a conversation with appellant, who was standing nearby. In the meantime, Mrs. Washington entered her mother's home. Approximately fifteen minutes later Mrs. Washington was suddenly summoned outside by a neighbor who informed her that, "some muslims is outside beating your husband up." Mrs. Washington stated she ran outside and saw her husband being assaulted by several men in the back seat of a car. Mrs. Washington identified appellant and his ...