Com. v. Middleton

• Decision Date: 27 September 1976
• Citation: 364 A.2d 342,242 Pa.Super. 421
• Parties: COMMONWEALTH of Pennsylvania v. Robert Stanley MIDDLETON, Appellant.
• Court: Pennsylvania Superior Court

Page 342

364 A.2d 342

242 Pa.Super. 421

COMMONWEALTH of Pennsylvania v. Robert Stanley MIDDLETON, Appellant.

Superior Court of Pennsylvania.

Sept. 27, 1976.

Robert S. Middleton, for appellant.

John J. Hickton, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

SPAETH, Judge:

This is an appeal from an order denying appellant's petition for post-conviction relief.

On October 21, 1970, appellant was tried before a jury and found guilty of receiving stolen goods, operating a motor vehicle while under suspension, and violating the Uniform Firearms Act, Act of June 24, 1939, P.L. 872, § 628, 18 P.S. § 4628. ¹ After the jury announced its verdict, the trial judge sentenced appellant to 2 1/2 to 5 years for receiving stolen goods, and to a consecutive sentence of 1 to 2 years on the firearms charge. Post-trial motions were filed on October 22, ² and after argument before the trial judge were denied on July 28, 1971. An appeal was timely filed, but on October 17, 1972, the Public Defender petitioned to withdraw as counsel. The petition was granted and the appeal was subsequently dismissed for failure to proceed. On December 2, 1974, appellant filed a petition under the Post Conviction Hearing Act, Act of Jan. 25, 1966, P.L. (1965) 1580, § 1 Et seq., 19 P.S. § 1180--1 Et seq., (Supp.1975), and a counseled evidentiary hearing was held before the judge who had been the trial judge. After the judge filed his opinion and order denying the petition, appellant requested a rehearing and when that request was denied, filed the present appeal.

The notes of testimony reveal the following facts. Shortly after midnight on October 7, 1969, two police officers observed appellant driving erratically and stopped him. After handing one of the officers a registration card, appellant reached into the glove compartment and placed his hand on a revolver. The officer drew his service revolver and ordered appellant to withdraw his hand. As appellant did so, he knocked a wallet to the car floor, revealing several Series E Savings Bonds. The police subsequently discovered approximately twenty-five bonds in the name of Angelo and Robert Cerminara and forty bonds belonging to Haywood Powell. At trial, Mr. Powell testified that his home had been 'robbed' on September 2, 1969, and that forty-three $25.00 government savings bonds had been taken. ³

Appellant's brief to this court is Pro se. In it, he alleges that the trial judge erred by pronouncing sentence prior to the filing and disposition of his post-trial motions; that the sentences he received were excessive and should not have been consecutive; that he was erroneously given separate trial for different offenses arising from the same criminal episode; and that the sentence imposed for possession of an unregistered firearm was illegal.

I

Immediately following the jury's verdict, defense counsel announced his intention to file post-trial motions. The trial judge then sentenced appellant and advised him of the necessity for filing the motions and for taking an appeal should they be denied. He added:

In view of the fact that you have already indicated that you desire to exercise the first of these rights and that is to file a motion for a new trial, the sentence that I have just imposed will be stayed pending the disposition of your motion for a new trial. If of course your motion for a new trial should be sustained, the sentences imposed will be arrested and cancelled in effect that motion is denied and that sentence becomes effective forthwith. But you still have right then to take an appeal to the Superior Court of Pennsylvania.

N.T. 170--171.

In his opinion, the trial judge stated that the sentencing procedure he followed is 'resorted to by most of the judges of this court,' Opinion at 3a, going on to say:

A sentence, however, which is stayed or its operational effect delayed does not change the status of the defendant. He remains either in jail, or, when appropriate, his bail is continued. A stayed or delayed sentence is not a final sentence and does not cut down the time for taking an appeal. What it does accomplish in a busy court is the elimination of the necessity for setting another day for sentencing and eliminating the increased frequency of defendants whose bail has been continued not appearing for sentencing.

As stated before, we are experiencing more and more situations where defendants have been continued on bail after conviction, and who fail to show for sentencing. They leave the jurisdiction or secrete themselves to escape final sentence after learning of the post trial disposition . . .. Under these circumstances, it would appear to be sound and desirable practice to pronounce the sentence right after trial, to be effective upon disposition of post trial motions. If any of the post trial motions of a defendant are sustained, the deferred sentence as imposed can be vacated. We see nothing wrong, legally or otherwise, under such circumstances to entertain post trial motions. On the contrary, the very fact of entertaining post trial motions indicates that the sentence is not a final judgment under Rule 1123 of the Rules of Criminal Procedure.

Opinion, 3a--5a.

We cannot accept this statement; the procedure it defends ignores the policies embodied in our rules, cases and statutes.

First, the comment to Pa.R.Crim.P. 1123 states that:

Post-verdict motions must be decided before sentencing, because the appeal lies from the final Order of the trial court, which includes sentence. See Appellate Court Jurisdiction Act, 17 P.S. §§ 211.102(6), 211.202(1), and 211.302. See also Commonwealth v. Haimbach, 151 Pa.Super. 581, 583, 30 A.2d 653 (1943).

Neither the comment nor the rule itself sanctions the imposition of a 'stayed or delayed sentence' such as the one imposed here. Although Rule 1123 did not become effective until July, 1973, and therefore may not be applied retroactively to the sentence here, See generally Commonwealth v. Schork, 230 Pa.Super. 411, 326 A.2d 878 (1974), and Commonwealth v. Beam, 227 Pa.Super. 293, 324 A.2d 549 (1974), ⁴ the principle that since an appeal must be from a judgment of sentence, post-trial motions must be decided before sentencing is long-established. See Commonwealth v. Souder, 376 Pa. 78, 101 A.2d 693 (1954); Commonwealth ex rel. Holly v. Ashe, 368 Pa. 211, 218, 82 A.2d 244, 247 (1951); Commonwealth v. Young, 223 Pa.Super. 447, 448 n. 1, 302 A.2d 402, 403 n. 1 (1973); ⁵ Commonwealth v. Whiting,205 Pa.Super. 92, 208 A.2d 1 (1965); Commonwealth v. Haimbach, supra. See also Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, Art. III, § 302, 17 P.S. § 211.302. Although the trial judge characterized the sentence here as 'stayed or delayed,' the record fails to reveal any more (or other) 'final' judgment of sentence from which an appeal might properly have been taken.

To be sure, as the trial judge asserts in his opinion, our courts have said that a suspended or deferred sentence is not a final judgment (and therefore is not the judgment from which an appeal must be taken). Commonwealth ex rel. Holly v. Ashe, supra; Commonwealth v. Giovengo, 188 Pa.Super. 220, 227 n. 1, 146 A.2d 629, 632 n. 1 (1958), Cert. denied, 361 U.S. 843, 80 S.Ct. 94, 4 L.Ed.2d 81 (1959); Commonwealth ex rel. Paige v. Smith, 130 Pa.Super. 536, 541--543, 198 A. 812, 814--815 (1938). We permit the deferral or suspension of a sentence; Commonwealth v. Giovengo, supra. Here, however, pronouncement of sentence was not deferred pending a subsequent proceeding, as in Giovengo; appellant knew when he filed his post-trial motions exactly what his sentence would be.

Another aspect of the procedure followed by the trial judge requires comment: the procedure precluded the preparation of a pre-sentence report. The American Bar Association Project of Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures (Approved Draft, 1968), emphasizes the importance of such a report in nearly every situation. § 5.5(a) states:

The sentencing court should be required to obtain and consider a pre-sentence report (sections 4.1--4.5) supplemented by a report of the defendant's mental, emotional, and physical condition (section 4.6) prior to the imposition of a minimum term of imprisonment (section 3.2), a consecutive sentence (section 3.4), a sentence as an habitual offender (section 3.3), or a special term based on exceptional characteristics of the defendant (sections 2.5(b), 3.1(c)).

Here, appellant received consecutive sentences; furthermore, these sentences were to follow the longer sentence imposed after the trial for the theft of the Cerminara bonds. In these circumstances, the standards require a pre-sentence report.

The fact that the procedure followed by the trial judge precluded a presentence report did not by itself render the procedure invalid, for Pa.R.Crim.P. 1403(a)(1), as of the date sentence was imposed, simply provided that '(t)he sentencing judge may, in his discretion, order a pre-sentence investigation report in any case.' The fact remains that, given 'the basic premises of Pennsylvania individualized sentencing,' Commonwealth v. Martin, --- Pa. ---, ---, 351 A.2d 650, 657 (1976), 'pre-sentence reports are of obvious importance to the sentencing court,' Id. at ---, 351 A.2d at 658. Moreover, in recognition of this fact, Rule 1403 has been amended to provide that whenever a defendant is a first offender, is under 21 at the time of conviction or plea, or 'where incarceration for one year or more is a possible disposition,' the sentencing judge 'shall place on the record his reasons for dispensing with the pre-sentence investigation report.' Pa.R.Crim.P. 1403(a) (2), amended June 23, 1976, eff. Jan. 1, 1977.

Although the procedure followed by the trial judge (and,...