No. 88 January Term, 1979, Appeal from the Order of the Superior Court (October Term, 1976, No. 2191), Affirming the Judgment Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, at Information No. 549, June Term, 1968.
John W. Packel, Asst. Public Defender, Chief, Appeals Div., Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Kenneth Gallant, Philadelphia, for appellee.
O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Kauffman, J., filed a dissenting opinion in which Larsen, J., joined.
The issue in the present appeal is whether the sentencing judge in imposing the maximum prison sentence upon appellant for a violation of probation abused his discretion in view of the circumstances of this case.
On February 25, 1969, one Mike Matthew Holmes was sentenced by this writer.*fn* Mr. Holmes had been convicted as a participant in a robbery of a SEPTA trolley. At that proceeding, though he was not a party to and had never been charged, the appellant, Ernest Cottle, approached the bench regarding his participation in the robbery.
Subsequent events were described by an Assistant District Attorney some months later at a proceeding before the Honorable Herbert Levin on a guilty plea on the robbery and an unrelated receiving stolen goods charge entered by appellant:
At that time, the defendant [Ernest Cottle], stepped up and stated he wanted to say something. Judge Nix advised him not to say anything, but he wanted to say something.
He was taken to the District Attorney's office, Detective Hahn interviewed him. The victim still cannot identify the defendant.
Normally, Your Honorable, I would ask for a more stringent sentence, but since he came in and pled guilty, I would ask for a ...