Commonwealth Ex Rel. Perrotta v. Myers

201 A.2d 292, 203 Pa. Super. 287, 1964 Pa. Super. LEXIS 846

• Court: Superior Court of Pennsylvania
• Decided: June 11, 1964
• Docket: Appeal, 120
• Status: Published

Opinions

Opinion by

Ervin, J.,

This is an appeal taken by Louis Perrotta from an order of Common Pleas Court No. 7 of Philadelphia County dismissing a petition for writ of habeas corpus.

Tlie appellant argues that he was illegally sentenced by Judge Vincent A. Carroll, sitting in the criminal court of Philadelphia County, claiming that he was given a four to eight year sentence on a larceny charge. (The maximum term for larceny is five years: §S07 of the Act of June 24, 1939, P. L. 872, 18 PS §4807.) It is true that on October 10, 1961 he was sentenced under Bill No. 847 September Sessions 1961, on a plea of guilty to larceny, for a term of not less than four years nor more than eight years. On the same date sentence was suspended on Indictments Nos. 848, 849 and 850 September Sessions 1961, for other separate charges of larceny. On November 16, 1961 the sentence imposed under Bill No. 847 was vacated and a sentence of two to four years on the larceny charge was imposed.

On the same date, to wit, November 16, 1961, the suspension of sentence on Bill No. 848 was vacated and a sentence of two to four years on the larceny charge was imposed, to run consecutively to the sentence imposed on Bill No. 847.

Bill No. 847 involved a larceny committed on February 8, 1961 at subway locker No. 1327 at 13th Street, at which time the appellant stole one bowling ball, one bag and one pair of shoes, the property of Edward Ball; Bill No. 848 involved a larceny committed on July 28, 1961 at locker No. 3301 at the Pennsylvania Railroad station at 30th and Market Streets, at which time the appellant entered locker No. 3301 and stole a pistol, handcuffs, railroad tickets and papers, the property of one Robert Hosier. The appellant had plead guilty to both of these larcenies. He was found not guilty of the burglary charges. It was perfectly proper for the court to correct the illegal sentence imposed on October 10, 1961 and to impose a correct sentence for a term of two to four years on the larceny charged in Bill No. 847, even though the correction was made after the expiration of the term in which the original sentence was imposed. See Com. ex rel. Paige v. Smith, 130 Pa. Superior Ct. 536, 548, 198 A. 812; Com. v. Downer, 161 Pa. Superior Ct. 339, 342, 53 A. 2d 897; Com. v. Campbell, 196 Pa. Superior Ct. 380, 393, 175 A. 2d 324; Com. v. Mackley, 380 Pa. 70, 110 A. 2d 172.

It was not proper for the court, on November 16, 1961, to impose a sentence of two to four years on the larceny charged in Bill No. 848: Com. v. Duff, 414 Pa. 471, 200 A. 2d 773.

The order of the court below must be affirmed, however, because the maximum period of four years imposed on Bill No. 847 on November 16, 1961 has not expired.

Order affirmed.