199 Pa. Super. 81 | Pa. Super. Ct. | 1962
Opinion by
In this habeas corpus proceeding appellant questions the legality of his sentences, but seeks also to question the validity of his conviction by raising questions as to the admission of evidence and its sufficiency.
We shall consider only the matter of his sentences since habeas corpus may not be used as a substitute for appeal. Commonwealth ex rel. Williams v. Myers, 193 Pa. Superior Ct. 110, 162 A. 2d 419.
Having been found guilty on two bills of indictment charging “Cheating by False Pretense” and two bills charging “Larceny”, appellant was sentenced to the Delaware County Prison on the two bills charging
It was within the power of the lower court to reconsider the original sentences it had imposed and to either reduce or increase them in penalty or severity so long as the term during which the original sentence was imposed had not expired. Commonwealth ex rel. Paylor v. Cavell, 185 Pa. Superior Ct. 176, 138 A. 2d 246, cert. den. 358 U. S. 854, 79 S. Ct. 84, 3 L. Ed. 2d 88. This included the power to impose a sentence upon a charge as to which sentence had theretofore been suspended. 11 P.L.E., Criminal Law, §645.
Appellant contends, however, that this power terminated upon his commitment on and the commencement of his original sentences, regardless of the term of court having ended or not; and alleges that before he was resentenced he had been committed and had served part of the term under the original sentence. His statement of law appears to be the general rule, 15 Am. Jur., Criminal Law, §§473, 474, although the question as to when a commitment begins creates differences in its application. However, in the absence of a brief from the prosecution, and any other information to the contrary, we may reasonably assume that appellant’s statement is correct and that he had been serving his original sentences in the Delaware County Prison for thirty days before he was resentenced.
As we review our decisions under Pennsylvania law, the time of commitment or the fact that part of the original sentence had been served is immaterial. The general rule in Pennsylvania is that the power of
Appellant’s final complaint relates to the alleged duplicity of the indictments. This question was not raised prior to trial, and there is no prejudice to appellant since he is now serving sentences only for the crimes of larceny. His sentences are in accordance with the law. When two counts of an indictment or two indictments charge the same offense and vary only in degree, or where one is an ingredient of the other, only one sentence is sustainable. Commonwealth ex rel. Sawchak v. Ashe, 169 Pa. Superior Ct. 529, 83 A. 2d 497, cert. den. 343 U. S. 980, 72 S. Ct. 1080, 96 L. Ed. 1371.
However, the duplicity or repugnancy of indictments are matters for disposition at trial or on appeal, not habeas corpus. Commonwealth v. Evans, 190 Pa. Superior Ct. 179, 154 A. 2d 57, aff. 399 Pa. 387, 160 A. 2d 407, cert. den. 364 U. S. 899, 81 S. Ct. 233, 5 L. Ed. 2d 194, reh. den. 364 U. S. 939, 81 S. Ct. 377, 5 L. Ed. 2d 371. See also Commonwealth v. Grosso, 192 Pa. Superior Ct. 513, 162 A. 2d 421, aff. 401 Pa. 549, 165 A. 2d 73.
There were no facts in dispute in the present matter, consequently no hearing was necessary. Therefore, since there is no merit in appellant’s contention as to the law, the order of Toal, J., dismissing the petition is affirmed.
