222 Pa. Super. 254 | Pa. | 1972
Opinion by
Appellant James Pristas was convicted as an accessory before and after the fact of malicious mischief by explosive and of conspiracy to do an unlawful act. The convictions resulted from a jury trial in the Court of Common Pleas of Allegheny County on January 29-30, 1969. This appeal is from the dismissal of appellant’s petition by Judge Ralph H. Smith, Jr., the trial judge, under the Post Conviction Hearing Act, Act of January 25,1966, P. L. 1580 (1965), 19 P.S. §1180.
Appellant contends that he was sentenced twice on the convictions and that the second sentence imposed a greater penalty, in violation of his constitutional rights.
Subsequently, appellant appeared before the trial court for a second time following his conviction. The notes of testimony, which are entitled “Sentence : August 1, 1969, Before Judge Smith”, include the following colloquy: “The Court: ... [I]n regard to the sentence I gave you. You will recall the sentence. The sentence isn’t going to change. The only thing is, I want to make it clear that this sentence does not run concurrently with any other sentence. I understand that there was a sentence imposed which has been appealed. The Defendant: Yes. The Court: . . . But be that as it may, this sentence that I imposed the other day will run separate and distinct from any other sentence, so I want that understood, and I didn’t think that I made that clear to you .... The Court : And I just want to make sure that you understand my sentence to be served, . . ., and these are not going to be run together, they will be served consecutively.”
This Court notes the controlling Pennsylvania law in cases such as the instant appeal involving double jeopardy in several recent decisions. In Commonwealth
The crucial question therefore, is whether the sentence given on July 23, 1969, was changed at the hearing on August 1, 1969. Although the trial court indicated at that hearing that “[t]he sentence isn’t going to change”, we hold that the sentence imposed on August 1, 1969, did change the valid sentence already imposed on appellant. This increase constituted double jeopardy in violation of his rights, as delineated in Silverman, supra, and cannot be permitted.
The legislative intent of the Act of May 28, 1937, P. L. 1036, §1, 19 P.S. §894, as determined by the case law interpreting this section, compels this holding. The Act states, in part, that: “[A] 11 sentences for criminal
Finally, we note that our decision in this case is in compliance with the mandate of the Statutory Construction Act that all “penal provisions” be strictly construed. Act of May 28,1937, P. L. 1019, art. IV, §58, 46
The judgments of sentence are vacated and the case remanded for resentencing in accordance with this opinion.
Appellant also contends that he did not knowingly and intelligently waive his right to appeal and that the trial judge erred in his charge to the jury. These arguments are refuted by the record and we affirm the convictions and deal only with the sentences.
The first and second counts were the charges for malicious mischief by explosive.
While the presumption that the sentences are to run concurrently only applies where the trial court has not specifically indicated whether they are to run consecutively or concurrently, it cannot be doubted that preserving the presumption benefits the defendant.