Appeal from the PCHA of August 6, 1986, in the Court of Common Pleas of Adams County, Criminal Division, at No. CC-107-84.
Robert G. Teeter, Gettysburg, for appellant.
Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.
Kelly, Popovich and Watkins, JJ. Kelly, J. files a concurring and dissenting statement. Popovich, J. concurs in the result.
[ 369 Pa. Super. Page 95]
This case comes to us on appeal from the Court of Common Pleas of Adams County and involves defendant-appellant's appeal from the sentences imposed upon him as the result of convictions for robbery and burglary.
The incident from which the conviction arose occurred on December 21, 1983 when the victim returned to her home and discovered that it had been ransacked. Upon entry to the premises, she was pulled aside by the appellant's accomplice and directed to the dining room where she was asked for money. The accomplice then pulled her purse from her shoulder and directed her to the second floor where she observed the appellant. The accomplice then pulled the telephone receptacle from the wall and ordered the victim under her bed.
Sometime later, the victim, believing the intruders had departed, exited the bedroom where she confronted the accomplice who pointed a gun at her, ordered her back to the bedroom where she was instructed to remove her clothing and to get back under the bed. The intruders left shortly thereafter.
[ 369 Pa. Super. Page 96]
The defendant was convicted by a jury of various counts of burglary and robbery, theft by unlawful taking and criminal conspiracy. On November 9, 1984, the appellant was sentenced to two and one-half to twelve and one-half (2 & 1/2 to 12 & 1/2) years on the burglary conviction and two and one-half to fifteen (2 & 1/2 to 15) years on the robbery conviction. The sentencing court provided that the robbery sentence should commence at the expiration of the minimum sentence imposed for the burglary conviction which rendered the sentence partially consecutive and partially concurrent.
Appellant appealed the robbery sentence to the Superior Court. This Court found that the robbery sentence exceeded the statutory maximum sentence and remanded the case to the sentencing court for a correction of the sentence and for a statement of rationale for the sentence. See Commonwealth v. Ward, 352 Pa. Superior Ct. 620, 505 A.2d 1037 (1985). On December 13, 1985, the sentencing court resentenced the appellant on the robbery conviction imposing a sentence of two and one-half to ten (2 & 1/2 to 10) years. The order provided that the effective date of the robbery sentence would be the expiration of the minimum sentence imposed on the burglary conviction that is at the end of two and one-half years. The court further ordered that the effect of the sentence for both offenses was to impose an imprisonment term of not less than five (5) years nor more than twelve and one-half (12 & 1/2) years. Thus, the sentence was made partially consecutive and partially concurrent.
Shortly before the Superior Court remanded the robbery sentence, appellant filed a P.C.H.A. petition in which he alleged, inter alia, that the sentence was illegal. After the re-sentencing on the robbery conviction, the appellant filed a Motion to Modify Sentence alleging that the sentencing court abused its discretion by imposing a sentence in excess of sentencing ...