No. 33 Pittsburgh, 1980, No. 34 Pittsburgh, 1980, Consolidated Appeals from the Judgment of Sentence, Court of Common Pleas, Butler County, CA. No. 543 of 1979, Book 69, Page 238, and CA No. 544 of 1979, Book 69, Page 239, Criminal Division.
Claude V. Falkenhan, Zelienople, for appellants.
Robert Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
Cavanaugh, Johnson and Shertz, JJ. The case was decided prior to the expiration of Shertz, J.'s, commission of office.
[ 295 Pa. Super. Page 156]
Appellants were arrested on charges of harassment,*fn1 a summary offense, and the district justice imposed a fine of twenty-five dollars ($25.00) on each Appellant. Appellants, pursuant to Pa.R.Crim.P., Rule 67(a), 42 Pa.C.S.A. (1981 Pamph.),*fn2 appealed to the court of common pleas. After a two-day non-jury trial, the judge found Appellants guilty and sentenced them to imprisonment for a period of thirty (30) days in the county prison. Appellants were escorted to the county prison; but, after a brief time, they were recalled to appear again before the trial judge. At this time, the judge vacated the sentence to allow Appellants ten (10) days to file post-trial motions, pursuant to Pa.R.Crim.P., Rule 1123(a), 42 Pa.C.S.A. (1981 Pamph.).*fn3
On January 9, 1981, the judge dismissed the post-trial motions and again sentenced Appellants to imprisonment for
[ 295 Pa. Super. Page 157]
thirty (30) days. In the same order, the judge denied bail without explaining the basis for denial of bail, as Rule 4010(C) requires.*fn4 On January 14, 1980, the trial judge granted Carl Beck's Application for Work Release. On the same date, the Superior Court, PRICE, J., granted Appellants' Application for Release Pending Appeal because the trial judge had failed to comply with Pa.R.Crim.P. 4010(C). The instant appeals are from the judgment of sentence of January 9, 1980. For the following reasons, we affirm the finding of guilt, vacate the judgment of sentence, and remand for a resentencing hearing.
Pursuant to an order of court, Appellant, Carl Beck, was to visit his daughter, Brandy, at the residence of Brandy's mother, Kathleen Beck. On the day in question, Carl Beck and his wife, Appellant Sharon Beck, were sitting with Brandy in Beck's truck, which bore Texas license plates. When Kathleen Beck ordered Brandy to leave the truck, a commotion ensued. Testimony indicates that Sharon Beck hit both Kathleen Beck and Lawson, her fiance, with a baseball bat. Appellant Carl Beck cut Lawson's face with a knife. A neighbor, who watched the brawl after having called the police, testified concerning the details.
Appellants raise five issues. First, did Appellants receive a fair and impartial trial before a neutral and unbiased trier of fact? Second, did the trial judge consider only the charges against Appellants and only competent evidence introduced in support of those charges. Third, did the Commonwealth sustain its burden of proving beyond a reasonable doubt every element, including the element of intent, of the crime charged against Appellant? Fourth, did the trial judge afford Appellants their legal rights in formulating and imposing sentence on them? Fifth, did the trial judge's imposition of a sentence of imprisonment violate double jeopardy because the sentence constituted a harsher
[ 295 Pa. Super. Page 158]
penalty than the fine that the district justice had imposed? We proceed to ...