Commonwealth v. Carelli

• Decision Date: 27 April 1927
• Docket Number: 152-1927,156-1927,155-1927,153-1927,151-1927,149-1927,150-1927,154-1927
• Parties: Commonwealth v. Carelli et al., Appellants
• Court: Pennsylvania Superior Court

90 Pa.Super. 416

Commonwealth v. Carelli et al., Appellants

Nos. 149-1927, 150-1927, 151-1927, 152-1927, 153-1927, 154-1927, 155-1927, 156-1927

Superior Court of Pennsylvania

April 27, 1927

Argued March 15, 1927

Appeals by defendant from judgment of O. & T. Allegheny County, November sessions, 1923, Nos. 186, 187, 210, 55, 118 119, 120 and 121, in the case of Commonwealth of Pennsylvania v. Raymond Duggan et al.

Indictment for robbery. Before Rowand, J.

The facts are stated in the opinion of the Superior Court.

Verdict of guilty and sentence suspended and subsequently imposed, as recited in the opinion of the Superior Court.

Affirmed.

Charles F. Patterson, and with him M. A. Musmanno, for appellant.

Samuel H. Gardner, for appellee.

Before Porter, P. J., Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

PORTER J.

These eight appeals present for determination but a single question, the one error assigned in each of the cases being similar to that in all the others, and may properly be disposed of by one opinion. Five of the indictments upon which the defendant was sentenced charged robbery and the other three charged larceny. The defendant and two other men with whom he was jointly indicted were tried upon an indictment which charged robbery and the trial resulted in a verdict, on April 14, 1925, of guilty as to all the defendants. The defendant, on the same day, entered pleas of nolle contendre in each of the other seven cases involved in these appeals. The court, on the same day, made the following order, as to this appellant, in each of the eight cases, viz: " Sentence suspended on payment of costs of prosecution by County as to Albert Carelli, by reason of sentence in No. 106, November Sessions, 1923." The record discloses that " No. 106, November Sessions, 1923," referred to that number of the Court of Oyer and Terminer of Allegheny County. Bench warrants were issued for this appellant and he was brought into the court below on October 21, 1926, whereupon the appellant, by his counsel, presented a written motion setting forth that the court had, on April 14, 1925, made the order (quoting the same) in each of the cases and that by reason of said order the court was " at present without power or jurisdiction to change .... that order or sentence, or to sentence said defendant, and therefore moves the court to discharge him." The court below in each of the cases, overruled this motion, granting an exception to the defendant, and sentenced the defendant. The refusal of the court to discharge the defendant, upon the ground stated in the motion, is assigned for error.

Did the court have power, after having made the above quoted order suspending sentence, to bring him in and impose sentence after the expiration of the term? It is here important to observe that the order suspending sentence did not discharge the defendant. No sentence was imposed on the defendant and the appeals do not, therefore, involve the question of the power of the court to impose part of the sentence authorized by law and subsequently, after the expiration of the term impose an additional sentence, which it is conceded cannot be done: Commonwealth v. Mayloy, 57 Pa. 291. Whether the county could properly be required to pay the costs is a matter not material to consideration of the question here presented. The general authority of the court to suspend sentence and then, after the expiration of the term, bring in the defendant and impose sentence cannot be questioned. It was said by Chief Justice Thompson, in the opinion in the case above cited: " The court has power to remand and hold convicts for sentence as long as may be deemed necessary and advantageous to the ends of justice, and in the mean time, may receive information in addition to that disclosed on the trial, in regard to what should be an appropriate sentence, under the circumstances, where the court has a discretion on the subject." The suspension of sentence is not, in Pennsylvania, a final judgment, nor is it equivalent to a nolle prosequi or discontinuance by which the case is put out of court, but is a mere suspending of active proceedings in the case, and the court may after the expiration of the term bring in the defendant and impose the sentence authorized by law; Commonwealth v. Dunleavy, 16 Pa.Super. 380; Commonwealth v. Hamel, 44 Pa.Super. 464. In Commonwealth ex rel. Wilhelm v. Morgan, 278 Pa. 395, 123 A. 337, it was said: " The right to temporarily defer sentence, while the court seeks information or the defendant applies for a pardon or for other sufficient reason, is universally recognized. The practice of an indefinite suspension of sentence has also long been in vogue in this and some other states, although in a majority of jurisdictions such right is denied, on the ground that an indefinite suspension of sentence amounts to a pardon, which only the executive can grant. .... Where such practice [an indefinite suspension of sentence] is recognized the right to later impose sentence remains with the trial court, and the time of its exercise is a matter for judicial discretion; manifestly, however, it would be an abuse thereof to impose sentence after a great delay. Hence, under any view of the law, sentence...