Opinion
December 8, 1970.
March 23, 1971.
Criminal Law — Possession of dangerous drugs — Evidence — Sentence in excess of statutory maximum — Power of appellate court to amend.
In this case, in which it appeared that defendant was indicted and convicted of unlawful possession of dangerous drugs, conspiracy to sell or traffic in drugs, and playfully and wantonly pointing a firearm, it was Held, upon review of the record, that defendant's substantive contentions were without merit, but that defendant's sentence of from two and a half to five years for possession of dangerous drugs exceeded the one year maximum sentence prescribed by statute; using its inherent power to amend, the appellate court amended the sentence to provide that the defendant be subject to imprisonment for not more than one year on the one bill, and, as amended, the judgment of sentence was affirmed.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeals, Nos. 750, 751, and 752, Oct. T., 1970, from judgment of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1967, Nos. 451, 452, and 453, in case of Commonwealth of Pennsylvania v. Joseph Lovett. As amended, judgment of sentence affirmed.
Indictments charging defendant with unlawful possession of dangerous drugs, conspiracy, violation of the Uniform Firearms Act, playfully and wantonly pointing a firearm and assault with intent to kill. Before McDEVITT, III, J.
Verdict of guilty of unlawful possession of a dangerous drug, conspiracy, and playfully and wantonly pointing a firearm and judgment of sentence entered thereon. Defendant appealed.
Martin A. Ostrow, for appellant.
Milton M. Stein, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Argued: December 8, 1970.
Appellant was indicted and convicted of unlawful possession of dangerous drugs, conspiracy to sell or traffic in drugs, and playfully and wantonly pointing a firearm (Bills Nos. 451-453, November Sessions 1967). He was sentenced to a term of from two and one half to five years for unlawful possession of dangerous drugs, one to two years on the conspiracy charge and six to twelve months for playfully pointing a firearm, all sentences to run consecutively.
After a complete review of the record, we find that appellant's substantive contentions are without merit. However, appellant's sentence of from two and a half to five years for possession of dangerous drugs exceeds the one year maximum sentence prescribed by statute. Act of September 26, 1961, P.L. 1664, § 20, as amended, Act of August 24, 1963, P.L. 1147, §§ 1, 2, 35 P.S. 780-20. Using our inherent power to amend, Commonwealth v. Phillips, 215 Pa. Super. 5, 257 A.2d 81 (1969) (WRIGHT, P.J.), we amend the sentence to provide that appellant be subject to imprisonment for not more than one year on Bill 451, November Sessions 1967. As amended, the judgment of sentence is affirmed.