COMMONWEALTH v. MOSES, 441 Pa. 145 (1970)

271 A.2d 339

Commonwealth v. Moses, Appellant.

Supreme Court of Pennsylvania.October 2, 1970.
November 12, 1970.

Criminal Law — Sentence — Second or subsequent offenses — Necessity of averment of prior convictions in indictment — Section 4-494 of the Liquor Code.

1. Under § 4-494 of the Liquor Code, April 12, 1951, P. L. 90 (which provides for an enlarged sentence for conviction of a second or subsequent offenses), an enlarged sentence may not be imposed where the indictment does not contain averments of prior convictions. [146]

Criminal Law — Practice — Sentence — Legality — Correction of illegal sentence — Habeas corpus.

2. A writ of habeas corpus is the proper remedy for testing the legality of a sentence based upon a defective indictment and for correcting an illegal sentence. [147]

3. In this case, the appeal from judgment of sentence was considered as being in the nature of a habeas corpus proceeding. [147]

Argued October 2, 1970. Before BELL, C. J., JONES, COHEN, EAGEN, O’BRIEN, ROBERTS and POMEROY, JJ.

Appeal, No. 215, March T., 1970, from order of Superior Court, April T., 1969, No. 334, affirming judgment of sentence of Court of Quarter Sessions of Lawrence County, Sept. T., 1968, No. 94, in case of Commonwealth of Pennsylvania v. George Moses. Judgment of sentence vacated and record remanded.

Same case in Superior Court: 216 Pa. Super. 281.

Page 146

Indictment charging defendant with illegal sale of beer and alcoholic beverages. Before LYON, J.

Verdict of guilty and judgment of sentence entered thereon. Defendant appealed to the Superior Court, which affirmed the judgment of sentence, opinion per curiam, concurring opinion by CERCONE, J., in which WRIGHT, P. J., joined, dissenting opinions by MONTGOMERY and HOFFMAN, JJ. Appeal by defendant to the Supreme Court allowed.

Carmen F. Lamancusa, Assistant Public Defender, for appellant.

James A. Caldwell, Assistant District Attorney, with him W. Thomas Andrews, District Attorney, for Commonwealth, appellee.

OPINION BY MR. JUSTICE COHEN, November 12, 1970:

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. Super. 281, 263 A.2d 781
(1970). Judge CERCONE filed a concurring opinion joined by President Judge WRIGHT. Judges MONTGOMERY and HOFFMAN 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. 394,

Page 147

89 A. 559 (1913); Rauch v. Commonwealth, 78 Pa. 490
(1875); Commonwealth ex rel. Blattenberger v. Ashe, 133 Pa. Super. 509, 3 A.2d 287 (1938); Commonwealth ex rel. Flory v. Ashe, 132 Pa. Super. 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 habeas corpus is the proper remedy for testing the 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 this appeal as being in the nature of a habeas corpus proceeding.

The judgment of sentence is vacated and the record remanded to the lower court for sentencing.