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COMMONWEALTH PENNSYLVANIA v. JAMES FERRER (09/23/83)

filed: September 23, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES FERRER, APPELLANT



Nos. 2829 & 2967 Philadelphia, 1980, Consolidated appeals from the Orders of the Court of the Common Pleas of Philadelphia County, at Nos. 337 December Term, 1973 and 494-499 September Term, 1975.

COUNSEL

Burton A. Rose, Philadelphia, for appellant.

Steven Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Hester and McEwen, JJ.

Author: Mcewen

[ 319 Pa. Super. Page 153]

We here consider the consolidated appeals from the denial of two distinct applications for separate writs of mandamus, both of which were filed to compel the Philadelphia County prison authorities to recompute the manner in which appellant was to serve the balance of two separate sentences as a result of a parole violation of each sentence. Appellant argues essentially that since the sentencing judge in each of the two separate cases failed to specify the manner in which the sentence for violation of parole should be served, those

[ 319 Pa. Super. Page 154]

    sentences should be deemed to be concurrent -- rather than consecutive as recorded by the prison authorities -- with a third sentence appellant was serving at the time that the parole was revoked in each of the two cases which are the subject of this appeal. We affirm.

Appellant had pleaded guilty to theft by unlawful taking as of Information No. 337, December Session, 1973, and was sentenced on January 21, 1974, by the learned Judge William Porter to a term of five years probation. Appellant was subsequently determined to have violated the terms of the sentence of probation and was sentenced by Judge Porter on November 18, 1975, to serve a term of imprisonment of from six months to twenty-three months in the Philadelphia County prison, to run consecutively to any sentence he was then serving.*fn1 Appellant was paroled after serving the six month minimum term of the sentence.*fn2 However, as a result of subsequent criminal conduct, Judge Porter on June 8, 1978, determined that appellant had violated the parole upon the six month to twenty-three month sentence imposed upon Information No. 337, December Session, 1973, and ordered appellant to serve the unserved seventeen month balance of that sentence. Judge Porter did not state whether that seventeen month balance was to be served in consecutive fashion with the sentence of imprisonment appellant was already serving.*fn3 Appellant subsequently applied to Judge Porter for a writ of mandamus to compel the prison authorities to record the seventeen month balance as running concurrently with the completely

[ 319 Pa. Super. Page 155]

    distinct sentence that appellant was serving at the time that Judge Porter directed him to serve the seventeen month balance. Judge Porter denied the application, as a result of which appellant undertook an appeal to this court as of No. 2829, Philadelphia, 1980.

In a totally distinct and unrelated case, the distinguished Judge Joseph T. Murphy, after a trial without a jury, found appellant guilty of aggravated assault, possession of instruments of crime, tampering with a witness and terroristic threats as of Informations Nos. 494-99, September Term, 1975. Judge Murphy sentenced appellant to a term of imprisonment of from eleven and one-half months to twenty-three months and to a further two year term of probation to commence upon his release from prison. Appellant was paroled at the completion of the minimum term of eleven and one-half months but, on June 15, 1978, one week after Judge Porter had revoked his parole and directed that he serve the seventeen month balance of the sentence imposed as of Information No. 337, December Session, 1973, Judge Murphy revoked his parole on the sentence imposed upon Information Nos. 494-99, September Term, 1975, and sentenced petitioner to serve the eleven and one-half month balance of that sentence. Judge Murphy did not state whether that eleven and one-half month balance was to be served in consecutive fashion with the sentence of imprisonment appellant was then serving or consecutive with the seventeen month balance of the sentence that had been imposed by Judge Porter.*fn4 Appellant subsequently applied to Judge Murphy for a writ of mandamus to compel the prison authorities to record the eleven and ...


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