369 A.2d 347 | Pa. Super. Ct. | 1976
On December 27, 1974, appellant was tried, non-jury, and convicted of aggravated assault, recklessly endangering the life of another person, and various weapons offenses. The conviction was the result of a July 1, 1974 incident in which the victim, Mr. Hamms, was shot in the face by appellant with a shotgun resulting in Mr. Hamms’ total blindness in one eye and partial blindness in the other. On February 18, 1975, appellant was sentenced to a term of nineteen years probation on the four charges listed above and, as a condition of the probation, appellant was ordered to pay $25.00 per week in restitution to Mr. Hamms.
Appellant raises two issues on this appeal, the first relates to the validity of his conviction, while the other relates to the legality of the sentence imposed.
First, appellant contends that his alleged common-law wife, Marlene Hamms, was allowed to testify against him in violation of the statutory prohibition of one spouse testifying against the other.
In his second issue concerning the legality of the sentence imposed, appellant contends that the trial court was without authority to order him to make payments to the victim as compensation for the physical injury inflicted. Succinctly stated, appellant’s position is that the Act of November 27, 1970, P.L. 790, No. 257, § 1; September 22, 1972, P.L. 876, No. 200, § 1 (18 P.S. § 5109) under which appellant was sentenced to make restitution, was not in effect at the time that he was ordered to compensate the victim. Based upon controlling precedent of this court, we find appellant’s sentence illegal as imposed and must reverse and remand for resentencing. This result is factually and legally controlled by the comprehensive decision of this court, in the recent case of Commonwealth v. Flashburg, 237 Pa.Super. 424, 352 A.2d 185 (1975), allocatur denied, April 28, 1976, which specifically held that between June 6, 1973 and March 30, 1975, the courts of this Commonwealth were not empowered to order a criminal defendant to make restitution as part of a judgment of sentence.
Accordingly, judgment of sentence of the court below is reversed and case remanded for imposition of a legal sentence. In all other respects, judgment of the court below is hereby affirmed.
. Post-verdict motions had been previously filed, but were withdrawn prior to sentencing by appellant and his counsel.
. Act of May 23, 1887, P.L. 158, Sec. 2(b) as amended, 19 P.S. Sec. 683, provides as follows: “Nor shall husband and wife be competent or permitted to testify against each other . . . .” (Emphasis added.)
. It has been stated that 19 P.S. § 683 is a “prohibition of which both the parties to the suit and the trial judge as well are bound to take notice. Connivance by the parties cannot evade it, nor can indulgence by the court.” Canole v. Allen, supra. See Commonwealth v. Moore, 453 Pa. 302, 307 (1973); Commonwealth v. Stots, 436 Pa. 555, 261 A.2d 577 (1970); In re Ulrich, 267 Pa. 233,
. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974); Commonwealth v. Abruzzese, 231 Pa.Super. 157, 331 A.2d 821 (1974).
. Because of the disposition of this issue under Commonwealth v. Stots, supra, we do reach the problem of whether this waiver exception is still viable in light of the subsequent and pervasive line of waiver cases, had a valid existing marriage been established with no objection entered at trial.
. Moreover, Marlene Hamms testified that she married the victim Mancy Hamms, on November 12, 1974, so that she was the spouse of Mr. Hamms, not the appellant, on the day she testified against the appellant. See Commonwealth v. Wilkes, 414 Pa. 246, 199 A.2d 411 (1964).