Summary
stating that "[t]he pronounced sentence as recorded on the indictments always controls"
Summary of this case from CATHEY v. KLEMOpinion
March 21, 1961.
April 13, 1961.
Criminal Law — Practice — Habeas corpus — Errors in transcript of testimony — Mistake in date of trial — Sentences — Reversal of numbers of indictments.
In a habeas corpus proceeding, in which it appeared that relator, charged with (1) corrupting the morals of a child and (2) sodomy, was adjudged guilty on both indictments; that the court below imposed a valid sentence on the second indictment and suspended sentence on the first indictment; that the sentences were recorded as stated and endorsed upon the bills of indictment, respectively; that the transcript of testimony, which was the basis for the petition for the writ, misstated the date of trial and also erroneously reversed the numbers of the indictments in noting the sentences; and that from the testimony at the hearing it clearly appeared that relator was in court on the date of sentence and that the reversal of the numbers of the indictments with reference to the sentence was a typographical error; it was Held that the writ of habeas corpus was properly vacated by the court below.
Before RHODES, P.J., ERVIN, WRIGHT, WOODSIDE, WATKINS, MONTGOMERY, and FLOOD, JJ.
Appeal, No. 29, Oct. T., 1961, from order of Court of Common Pleas No. 1 of Philadelphia County, March T., 1960, No. 2912, in case of Commonwealth ex rel. William F. Middleton v. William J. Banmiller, Warden. Order affirmed.
Habeas corpus.
Order entered vacating writ, opinion by ULLMAN, J. Relator appealed.
William F. Middleton, appellant, in propria persona.
Louis F. McCabe and Arlen Specter, Assistant District Attorneys, Paul M. Chalfin, First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.
Submitted March 21, 1961.
This is an appeal from the order of the Court of Common Pleas of Philadelphia vacating a writ of habeas corpus. Appellant was brought to trial before the Court of Quarter Sessions of the Peace of Philadelphia County sitting without a jury upon two bills of indictment. Bill No. 584 charged the appellant with the crime of corrupting the morals of a child. Bill No. 585 charged the appellant with the crime of sodomy.
On July 9, 1956, the lower court imposed sentence on Bill No. 585, of not less than five nor more than ten years in the Eastern State Penitentiary (now State Correctional Institution of Philadelphia). On Bill No. 584, appellant received a suspended sentence. These sentences were recorded as stated and endorsed upon the bills of indictment, respectively. However, the transcript of testimony, which was the basis for appellant's petition for writ of habeas corpus, mistakenly states the day of trial as July 6, 1956, and states the day of sentence as July 9, 1956.
Appellant has had this matter reviewed on several other occasions, with results adverse to him. The fact that no appeals were taken would justify the dismissal of this appeal. Nevertheless, we have reviewed the record and have concluded that the order of the lower court should be sustained.
Writs of habeas corpus were sought and dismissed as follows:
a. Philadelphia County C.P. No. 1, December Term, 1957, No. 1155, January 17, 1958.
b. Philadelphia County C.P. No. 1, June Term, 1958, No. 2892, September 19, 1958.
c. Philadelphia County C.P. No. 1, March Term, 1959, No. 619, April 3, 1959.
A hearing was held on the petition in this case. From the testimony taken at that time it clearly appears that appellant was in court on July 9, 1956, and not on July 6, 1956, as shown by the transcript of testimony taken at his original trial, and that July 9, 1956, was the correct date of his trial and sentence.
Therefore, the only remaining discrepancy is that relating to the indictments on which sentence was imposed. Bill 585 charging sodomy carries a proper sentence for that charge, "not less than five nor more than ten years in the Eastern State Penitentiary," and on Bill 584 (Corrupting the morals of a child) sentence was suspended. The notes of testimony have the numbers in reverse order, with 585 suspended and a five-to-ten-year sentence on 584, which would be illegal for the latter.
However, the court reporter testified that this was a typographical error and the lower court found it to be in error. This corrects the discrepancy. The pronounced sentence as recorded on the indictments always controls. 11 P.L.E., Criminal Law, § 647; Commonwealth ex rel. Marelia v. Hill, 177 Pa. Super. 520, 110 A.2d 832; Commonwealth ex rel. Scoleri v. Burke, 171 Pa. Super. 285, 90 A.2d 847. It has been repeatedly held by this Court that an alleged inconsistency between sentence as written and as orally pronounced may not be collaterally questioned in a habeas corpus proceeding. Commonwealth ex rel. Chaney v. Cavell, 185 Pa. Super. 82, 138 A.2d 180; Commonwealth ex rel. Clawson v. Baldi, 180 Pa. Super. 258, 119 A.2d 874. This would also be applicable to any clerical mistakes.
Order affirmed.