Commonwealth v. Moses

Supreme Court of Pennsylvania

Commonwealth v. Moses

271 A.2d 339, 441 Pa. 145, 1970 Pa. LEXIS 510

CourtSupreme Court of Pennsylvania

DecidedNovember 12, 1970

DocketAppeal, No. 215

StatusPublished

Cited by23 cases

This text of 271 A.2d 339 (Commonwealth v. Moses) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Commonwealth v. Moses, 271 A.2d 339, 441 Pa. 145, 1970 Pa. LEXIS 510 (Pa. 1970).

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Opinion

;-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. [147]*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.

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;-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. [147]*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.

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271 A.2d 339, 441 Pa. 145, 1970 Pa. LEXIS 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-moses-pa-1970.

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