No. 934 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Philadelphia County, at No. 1757 May Term, 1972.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and Hester and Wieand, JJ. Wieand, J., files a dissenting opinion.
[ 309 Pa. Super. Page 188]
Appellant, Dennis Grady, takes this appeal from the judgment of sentence entered following the revocation of his probation on charges of aggravated robbery and related offenses. Appellant raises but one issue in this appeal: Whether the sentence of two and one-half to eight years in prison entered by the court in its written judgment of sentence was a legal sentence because, as appellant contends, the judge's oral pronouncement of sentence directed that appellant was only to receive a term of probation. We find appellant's argument to have merit and we reverse.
On April 29, 1975, appellant pleaded guilty before the Philadelphia Court of Common Pleas to burglary (Indictment
[ 309 Pa. Super. Page 189]
No. 1755, May Term, 1972), aggravated robbery (No. 1756), a second aggravated robbery charge (No. 1757), and aggravated assault (No. 1758). Soon thereafter, at a sentencing hearing held on May 28, 1975, the court orally sentenced appellant to a one to ten year term in prison on Indictment No. 1756 (aggravated robbery); on the remaining bills, the court sentenced appellant to five years probation to run concurrent with the sentence on Bill No. 1756. However, in the written sentence order the court did not include the sentence for No. 1756 but only wrote "And now sentence: five years reporting probation to run concurrently with Bill No. 1756." Whereupon, that same day, the court called appellant before it and "reconsidered sentence." This time, the court sentenced appellant on Bill No. 1756 to a prison term of eleven and one half to twenty-three months. On Bill No. 1757, the court ordered five years probation to run consecutively with the sentence on No. 1756. For the two remaining bills, Nos. 1755 and 1758, the court ordered three years probation to run concurrently with the probationary term ordered on Bill No. 1757. These sentences were correctly recited in the amended order of sentence.
Subsequently, on July 26, 1977, a hearing was held concerning appellant's alleged violation of the terms of his probation, owing to appellant's conviction for numerous crimes while on probation. The court found appellant to be in violation of his probation, whereupon, the following occurred on the record:
THE COURT: Probation is respectfully revoked. Defendant is sentenced on Bill Number 1756 to a term of four to ten years in the Eastern State Penitentiary, the sentence to run concurrent with [other sentences appellant was then serving]. The same sentence on all other bills, to run concurrent.
Would you be good enough to advise your client of his appellate rights, please.
DEFENSE COUNSEL: I am just wondering if the aggravated assault and battery rises sufficiently to run to four to ten.
[ 309 Pa. Super. Page 190]
THE COURT: I think aggravated assault does. To the extent that you have an assault bill, just drop that down, if it is aggravated assault.
DEFENSE COUNSEL: The way I am reading the summary, it is assault and battery and aggravated assault and battery. What I would suggest, your Honor, is that you consider suspending sentencing on all other ...