Com. v. Wolfe

• Decision Date: 24 March 1972
• Citation: 220 Pa.Super. 415,289 A.2d 153
• Parties: COMMONWEALTH of Pennsylvania v. James Nelson WOLFE, Appellant.
• Court: Pennsylvania Superior Court

Page 153

289 A.2d 153

220 Pa.Super. 415

COMMONWEALTH of Pennsylvania v. James Nelson WOLFE, Appellant.

Superior Court of Pennsylvania.

March 24, 1972.

Carl Blanchfield, Pittsburgh, for appellant.

Robert Campbell, Carol Mary Los, Asst. Dist. Attys., Robert W. Duggan, Dist. Atty., Pittsburgh, for appellee.

Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN and CERCONE, JJ.

HOFFMAN, Judge:

This is an appeal from the judgment of sentence following appellant's convictions on three indictments, the first charging rape, aggravated assault and battery, and pointing firearms; the second charging burglary, larceny, and receiving stolen goods; and the third charging assault and battery.

Testimony at trial established that appellant entered the home of his brother-in-law and took a hand gun which belonged to the brother-in-law without his knowledge. The burglary, larceny, and receiving charges against appellant were predicated upon the theft of the hand gun. After taking the gun, appellant then used it in the commission of a rape. The victim of the rape was struck by appellant with the gun during the incident. The other charges were lodged against appellant because of this attack.

Appellant was sentenced on the count of rape to a term of imprisonment of not less than two and one-half nor more than five years. In addition, because of appellant's use of a gun in the commission of the rape, the lower court imposed an additional sentence of five to ten years, pursuant to the 'gun possession act,' of 18 P.S. § 4416 (b). ¹ This additional sentence was to run consecutively to the sentence imposed for rape. Sentence on the counts charging aggravated assault and battery, and pointing firearms was suspended by the court.

As to the indictment containing the counts of burglary, larceny, and receiving stolen goods, appellant was sentenced on the second and third count of larceny and receiving stolen goods to concurrent terms of imprisonment of not less than six months nor more than one year on each count, said sentences to run consecutively with the sentence imposed on the first indictment. Appellant was sentenced to not less than six months nor more than one year on the assault and battery count contained in the third indictment, said sentence to run consecutively with the sentence imposed on the second indictment.

Appellant contends in this appeal that 1) the sentence imposed pursuant to 18 P.S. § 4416(b), supra, was not valid, and 2) the concurrent sentences imposed on the larceny and receiving counts were improper. We will consider each claim separately.

I

Appellant argues that his sentence of five to ten years under the 'gun possession act,' 18 P.S. § 4416(b), was constitutionally defective in that the violation of § 4416(b) was not included in the complaint or indictments. In the recent case of Commonwealth v. Bryant, 219 Pa.Super. 412, 281 A.2d 678 (1971), our Court considered a claim identical to that presented by the appellant in the instant case: 'The appellant . . . was found guilty on charges of assault and battery with intent to ravish, simple assault and battery, rape, and pointing a firearm. The appellant was sentenced on the above-enumerated charges and then was further sentenced to five to ten years imprisonment for violation of (18 P.S. § 4416(b)), popularly known as the 'Gun Law.' (footnote omitted)

'The record shows that appellant was not indicted nor arraigned for any violation under the provisions of the 'Gun Law' and appellant contends, therefore, that he was improperly sentenced. The first notice appellant had of a charge under this act was when he was sentenced for its violation.' Bryant, supra, at 413, 281 A.2d at 678--679.

Judge Cercone, speaking for our Court in Bryant, concluded that it was a 'fundamental necessity that the accused be informed of the nature of all crimes charged, as well as being given the opportunity to present a defense to those charges. The sentencing procedure employed by the trial (court) . . . in the instant case was certainly constitutionally defective.' (footnote omitted) ² Bryant, supra, at 414, 281 A.2d at 679.

In a criminal prosecution it is imperative that a defendant be given clear notice of the charges against him. The indictment upon which appellant was charged in the instant case contains no notice of a violation of 18 P.S. § 4416. The indictments in Bryant and this case do contain a reference to the use of a gun, but this would not be sufficient notice of the charge. A defendant should not have to guess which charges have been placed against him. If the charges in an indictment are not clear and explicit, a defendant cannot properly defend against them. Therefore, the additional sentence of five to ten years imposed under the 'gun possession act' was error and must be vacated.

II

Appellant's second argument is that he was improperly sentenced separately for larceny and receiving stolen goods. The district attorney's brief concedes that this is '(a) separate and distinct sentence (which) should not be imposed on each count (citation omitted).' Commonwealth v. Phillips, 215 Pa.Super. 5, 7, 257 A.2d 81, 83 (1969) (Wright, P.J.).

The Commonwealth argues, however, that since appellant received concurrent sentences on these two counts, he has suffered no prejudice. This argument is based on the 'concurrent sentence doctrine,' a doctrine never accepted in Pennsylvania and recently discredited by the ...