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COMMONWEALTH PENNSYLVANIA v. KENNETH ORMSBEE (07/12/78)

decided: July 12, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH ORMSBEE, APPELLANT



No. 1183 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Berks County, at No. 698 of 1975.

COUNSEL

Lee Mandell, Philadelphia, for appellant.

John T. Forry and Charles M. Guthrie, Jr., Assistant District Attorneys, Reading, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., files an opinion in support of affirmance in which Cercone and Price, JJ., join. Spaeth, J., files an opinion in support or reversal in which Jacobs, President Judge and Hoffman, J., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 257 Pa. Super. Page 323]

OPINION

The six Judges who decided this case being equally divided, the judgment of sentence is affirmed.

[ 257 Pa. Super. Page 324]

VAN der VOORT, Judge, in support of affirmance:

Appellant was convicted by a jury of a criminal solicitation, 18 P.S. 902, and criminal conspiracy, 18 P.S. 903(a)(1), in connection with the burglary of a house occupied by Gregory A. Ebling in Fleetwood, Pennsylvania. Appellant was sentenced on the first count to serve two years on probation, to pay the costs of the prosecution and a $1,000 fine, and to make restitution for the stolen property in the amount of $3,600, such costs, fine and restitution to be paid during the first twenty months of the sentence. The sentence on the second count was one year on probation to begin at the expiration of the first probationary period, the payment of costs and a $500 fine, payable over the first six months of the second probationary period.

The victim, Gregory A. Ebling, died of causes unrelated to the burglary between the time it happened and the imposition of sentence. At the hearing preceding sentence, appellant's counsel questioned whether restitution was appropriate after the death of the victim, but acquiesced in the court's decision to make restitution a part of its sentence when the court indicated that if it did not order restitution it would increase the fine. Counsel also acquiesced in the suggestion of the court at the hearing preceding sentence that the value of the stolen property be fixed at $3,600, a value to which the victim had testified, rather than hold further hearings on the matter.

Appellant had appealed the judgment imposing sentence, contending that restitution could not be required after the death of the victim and challenging the amount of restitution ordered on the ground that there was inadequate proof of the value of the property stolen.

Immediately prior to the imposition of sentence, appellant withdrew a petition previously filed asking for a new trial and arrest of judgment. Appellant's counsel took no exception on either issue when sentence was imposed; indeed, he acquiesced. He filed no motion in the lower court to have the judgment vacated or ...


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