No. 1493 OCTOBER TERM, 1978, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Montgomery County, at No. 4036 October Term, 1974.
Ronald F. O'Driscoll, Assistant Public Defender, Norristown, for appellant.
James A. Cunningham, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Van der Voort, Hester and Wieand, JJ. Hester, J., files a dissenting statement.
[ 271 Pa. Super. Page 583]
Appellant was convicted of burglary at No. 4036 October Term, 1974, and was sentenced on June 25, 1975 by Judge Tredinnick to a term of six to twelve years imprisonment.
On May 13, 1975, in another burglary case, at No. 3640 October Term, 1974, Judge Tredinnick had sentenced appellant to a term of six to twelve years. From the sentence at No. 3640, appellant took an appeal to the Superior Court. On June 28, 1976, the Superior Court reversed the lower court and dismissed the complaint because of a violation of Pa.R.Crim.P. 1100. Commonwealth v. Coleman, 241 Pa. Super. 450, 361 A.2d 870 (1976).
The sentence at No. 4036 was appealed to the Superior Court, and was affirmed on April 20, 1976. A request for allocatur to the Supreme Court was denied.
At No. 4036, on May 10, 1977, appellant filed a Petition and Supplemental Brief, in which he asked the Court for a Post Conviction Hearing so that his sentence of six to twelve years could be corrected. The petition averred that the conviction at No. 3640 had been reversed by the Superior Court, and that his sentence at No. 4036 should therefore be reconsidered.
The lower court granted a rule in this petition, returnable June 7, 1977, and appointed Attorney George B. Ditter to represent appellant.
[ 271 Pa. Super. Page 584]
The Commonwealth filed an answer to the Petition for a Post Conviction Hearing on May 24, 1977, stating:
"It is denied that the sentence imposed on Bill of Indictment No. 3640 October Term, 1974 was subsequently overruled by the Superior Court of ...