No. 338 January Term, 1977, Appeal from Order of Superior Court, October Term, 1975, No. 1000 Reversing Order of Philadelphia Court of Common Pleas, Criminal Section, Trial Division, July Sessions, 1974, Nos. 1575-1578, and Remanding Matter for Resentencing
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Paul S. Diamond, Asst. Dist. Atty., Philadelphia, for appellant.
Charles C. Coyne, Philadelphia, for appellee.
Howard S. Yares, Deborah E. Glass, Philadelphia, for amicus curiae, Victim Counseling Service, Philadelphia Bar Assoc.
Eagen, C. J., and Roberts, Nix and Larsen, JJ. Mr. Justice Manderino did not participate in the consideration or decision of this case. O'Brien, J., and Pomeroy, former J., did not participate in the decision of this case. Roberts, J., filed a concurring opinion. Larsen, J., joins in this opinion and filed a concurring opinion.
Achelohiym Walton was convicted by a judge sitting without a jury of aggravated assault, recklessly endangering another person, and two weapons offenses. The charges arose out of an incident during the early morning hours of July 1, 1974, when Walton, armed with a shotgun, arrived at the apartment of Marlene, his former common-law wife and the mother of at least two children by Walton, and fired a blast from the shotgun into the face of Mancey Hamms, with whom Marlene was then living.*fn1 As a result of this attack, Hamms lost the sight of both eyes.
On February 19, 1975, a sentencing hearing was held. The judge noted the heinous nature of Walton's act but observed that he previously had no serious criminal record. She stated that, rather than sentencing him to prison,
"I would prefer to have him do something to make some slight atonement for society for the terrible wrong that he has done. The only thing I can think of having him do is to work and make some payment to Mr. Hamms other than sitting in jail and being an expense to the public."
Accordingly, after ascertaining Walton's earning potential based on his record of previous employment and requesting and receiving the comments of counsel, she sentenced Walton to probation for nineteen years*fn2 on the condition that he pay Hamms in restitution $25.00 per week during the entire probationary period. In imposing sentence, she relied upon the Act of June 24, 1939, P.L. 872, § 1109, as added and
amended, 18 P.S. § 5109.*fn3 Neither Walton nor his counsel objected in the trial court to the propriety of the restitution order in general or complained of its specific terms.*fn4
Subsequently, however, Walton appealed to the Superior Court and, inter alia, challenged the authority of the trial court to order restitution; the Superior Court remanded for resentencing. In doing so, it relied upon its previous decision in Commonwealth v. Flashburg, 237 Pa. Super. 424, 352 A.2d 185 (1975), in which it had held that section 1109 of the 1939 Penal Code had been repealed by the new Crimes Code and that between June 6, 1973, the effective date of the new Code, and March 30, 1975, the date the Code specifically authorized restitution,*fn5 ...