Commonwealth v. Moses
441 Pa. 145
Pa.
1970
Check Treatment

;-Opinion by

Mb. Justice Cohen,

This is an appeal from the judgment of sentence of the Court of . Common Pleas of Lawrence County, affirmed by the Superior Court, per curiam, 216 Pa. Superior Ct. 281, 263 A. 2d 781 (1970). Judge Cebcone filed á concurring opinion joined by President Judge Weight. Judges Montgomery and Hoeeman filed dissenting, opinions. We granted allocatur.

Appellant was found guilty of selling liquor after the. required closing hour pursuant to an indictment which did not contain any allegation of prior convictions. Appellant was sentenced by the lower court to pay a fine and undergo imprisonment in accordance with section 4-494 of the Liquor Code, a recidivist section providing for an enlarged sentence for conviction Of second or subsequent offenses, Act of April 12, 1951, P. L. 90, Art. IV, §494, 47 P.S. §4-494. The lower court lacked the power to impose this enlarged sentence when the indictment did not contain averments of prior convictions. Commonwealth v. Payne, 242 Pa. *147394, 89 Atl. 559 (1913); Rauch v. Commonwealth, 78 Pa. 490 (1875); Commonwealth ex rel. Blattenberger v. Ashe, 133 Pa. Superior Ct. 509, 3 A. 2d 287 (1938); Commonwealth ex rel. Flory v. Ashe, 132 Pa. Superior Ct. 405, 1 A. 2d 685 (1938);Commonwealth ex rel. Banks v. Myers, 84 Dauph. 222 (1965); Commonwealth v. Scott, 54 Pa. D. & C. 243 (1945); Commonwealth v. Ciccarelli, 42 Pa. D. & C. 643 (1941); Commonwealth v. Boyer, 37 Pa. D. & C. 81 (1940).

Since a writ of babeas corpus is tbe proper remedy for testing tbe legality of a sentence based upon a defective indictment and for correcting an illegal sentence, Commonwealth ex rel. Flory v. Ashe, supra; Commonwealth ex rel. Banks v. Myers, supra; Commonwealth v. Scott, supra, we consider tbis appeal as being in tbe nature of a babeas corpus proceeding.

Tbe judgment of sentence is vacated and tbe record remanded to tbe lower court for sentencing.