Commonwealth v. Gordon

• Citation: 477 A.2d 1342,329 Pa.Super. 42
• Parties: COMMONWEALTH of Pennsylvania v. Tyrone GORDON, Appellant.
• Decision Date: 11 May 1984
• Court: Superior Court of Pennsylvania

477 A.2d 1342

329 Pa.Super. 42

COMMONWEALTH of Pennsylvania v. Tyrone GORDON, Appellant.

Superior Court of Pennsylvania.

May 11, 1984

Submitted Oct. 21, 1983. [Copyrighted Material Omitted]

Jacqueline M. Roberts, Philadelphia, for appellant.

Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before SPAETH, President Judge, and WIEAND and MONTEMURO, JJ.

SPAETH President Judge:

This is an appeal from judgments of sentence for criminal conspiracy burglary, and criminal trespass. Appellant argues that the evidence was insufficient; that his trial counsel was ineffective for failing to move to have his case severed from his co-defendant's case; and that his sentences were excessive. The first two arguments are without merit. On the third argument: We vacate the sentence for criminal trespass because the trespass merges with the burglary. We affirm the sentence for burglary. The trial court attempted to modify the sentence for criminal conspiracy, but by the time it made the attempt, it had lost jurisdiction. We therefore modify the sentence ourselves, so that it will be as the trial court intended.

Before we can consider appellant's arguments, we must resolve a procedural difficulty.

On July 20, 1981, following a non-jury trial, appellant was found guilty of criminal conspiracy, burglary, and criminal trespass. On December 2, 1981, after denying post-verdict motions, the trial court sentenced appellant to four to ten years in prison for criminal conspiracy, with concurrent sentences of ten years probation for burglary and criminal trespass. Appellant filed a timely motion for reconsideration of the sentence, and, on December 29, 1981, filed an appeal; this is Appeal No. 3331 Phila.1981. The trial court did not hear the motion for reconsideration until March 31, 1982, when it modified the sentence for criminal conspiracy from four to ten years in prison to three to ten years; it reimposed the concurrent sentences of ten years probation for burglary and criminal trespass.

In response to the modified sentence, counsel for appellant took two actions. First, on April 5, 1982, counsel withdrew the appeal from the original sentence. Second, on April 27, 1982, counsel filed an appeal from the modified sentence; this is Appeal No. 1288 Philadelphia 1982.

The general rule regarding a trial court's power to modify a sentence is that

except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

42 Pa.C.S. § 5505 (1981).

If an appeal has been taken, then the general rule is that the trial court has no jurisdiction to modify its sentence. Pa.R.App.P. 1701(a). However, Pa.R.App.P. 1701(b)(3) contains an exception to this general rule: even after a defendant takes an appeal, the court may reconsider its sentence provided two conditions are satisfied. First, the defendant must file a motion for reconsideration of sentence "within the time provided or prescribed by law." Pa.R.App.P. 1701(b)(3)(i). The time "prescribed by law" for filing of a motion to modify a sentence is "within ten days of sentence." Pa.R.Crim.P. 1410. Second, the trial court must issue "an order expressly granting reconsideration" of its sentence "within the time prescribed by these rules for the filing of a notice of appeal." Pa.R.App.P. 1701(b)(3)(ii). The time "for the filing of a notice of appeal" is within 30 days of sentence. Pa.R.App.P. 903.

It is important to note that the trial court must "expressly grant reconsideration" within 30 days of sentence; an order that "all proceedings shall stay" will not suffice. Comment, Pa.R.App.P. 1701. In addition, while Pa.R.App.P. 1701(b)(3) requires only that the trial court issue an order "expressly granting" reconsideration, the trial court does have the power to vacate a sentence within 30 days. Thus, the soundest procedure for the trial court to follow, and the procedure that will avoid the sort of difficulty that has occurred in this case, is to vacate the sentence when granting reconsideration. See, Commonwealth v. Thomas, 301 Pa.Super. 333, 335-36, 447 A.2d 994, 995 (1982); Commonwealth v. Corson, 298 Pa.Super. 51, 55 n. 2, 444 A.2d 170, 172 n. 2 (1982).

Here, the first condition of Pa.R.App.P. 1701(b)(3) was satisfied, but the second was not: appellant filed a motion for reconsideration of the sentence within ten days of the sentence, but the trial court failed to issue an order expressly granting reconsideration of the sentence, instead only scheduling a hearing on the motion for reconsideration, and making no attempt to modify the sentence for more than three months.

We have consistently held that the trial court lacks jurisdiction to modify a sentence once the 30 day period for filing an appeal has passed. Commonwealth v. Lynch, 304 Pa.Super. 248, 450 A.2d 664 (1982); Commonwealth v. Corson, 298 Pa.Super. 51, 444 A.2d 170 (1982); Commonwealth v. Canady, 297 Pa.Super. 292, 443 A.2d 843 (1982). In Lynch, for example, the trial judge sentenced the defendant, and the defendant filed a timely appeal. Four and one-half months later, the trial judge vacated the sentence and imposed a more lenient sentence. Both the Commonwealth and the defendant filed timely appeals from the "New Sentence." This court, citing 42 Pa.C.S. § 5505, held that the trial court's attempt to modify the sentence was a nullity, "both because the appeal had already been taken and because more than 30 days had passed since entry of the original sentence." Commonwealth v. Lynch, 304 Pa.Super. 248, 251, 450 A.2d 664, 666 (1982). We therefore vacated the "New Sentence" and dismissed both the Commonwealth's and the defendant's appeal from that sentence.

We noted in Lynch that the defendant was in no way prejudiced by our dismissal of his appeal from the "New Sentence," because his appeal from the original sentence remained operative. Id. at 248 n. 1, 450 A.2d at 666 n. 1. Here, in contrast, if we acted in a similar manner, appellant would be prejudiced. Presumably because he believed that the trial court's untimely attempt to modify the sentence was valid, counsel for appellant withdrew the appeal from the original sentence and filed an appeal from the new sentence. Thus, if we were to vacate the new sentence and dismiss the appeal from that sentence, as we did in Lynch, we should not have an operative appeal before us.

Furthermore, to act as we did in Lynch would be a waste of judicial resources. Counsel had no reasonable basis for withdrawing the appeal from the original sentence. See, Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Appellant could therefore file a claim pursuant to the Post Conviction Hearing Act, alleging ineffective assistance of counsel, and eventually this case would again be before us.

We shall therefore take the following procedural steps. First, we vacate the trial court's invalid sentence of March 31, 1982, and dismiss appellant's appeal from that sentence (Appeal No. 1288 Philadelphia 1982). The effect of this action is to reinstate the original sentence of December 2, 1981. Second, we reinstate appellant's appeal from the December 2, 1981, sentence (Appeal No. 3331 Philadelphia 1981). We can now consider appellant's several arguments challenging that sentence.

-1-

Appellant was tried with a co-defendant, Charles McDowell. The Commonwealth's only witness was Al Zikowitz, a security guard for the Philadelphia School Board. Mr. Zikowitz testified as follows. On November 11, 1980, a school holiday, at approximately 6:15 p.m., he was notified of a possible break-in at the Rhodes Middle School. N.T. 17. He entered the school and discovered appellant and the co-defendant inside Instrument Room No. 4, on the second floor of the school. Appellant was removing musical instruments from a closet and piling them on the floor, and the co-defendant was standing on the other side of the room, also piling instruments on the floor. N.T. 19-20. Mr. Zikowitz apprehended appellant and the co-defendant and handed them over to the police outside of the school. He then re-examined the premises. Certain plywood boards, which had been used to board up a previously broken window, had been removed from that window. N.T. 41. A metal gate in front of the broken window had been pulled away from the ground, leaving enough room for a man to crawl under. N.T. 25. A door that connected an alcove near the window to a main hallway had been opened; the opening of this door had triggered a silent alarm. N.T. 25, 26. The lock on the door to the instrument room had been broken, and several locks on closet doors inside the room had been broken off of the doors. N.T. 51-52.

The only witness for the defense was the co-defendant. He testified that he and appellant had been walking through the schoolyard when Mr. Zikowitz came out of the school and apprehended them. N.T. 60-63. After the co-defendant's testimony, counsel for appellant and the district attorney stipulated that appellant's testimony would be cumulative, and appellant did not testify.

Appellant argues that this evidence was insufficient to support a verdict of guilty on any of the charges. This argument is without merit.

In testing the sufficiency of the evidence, we accept as true all evidence upon which the finder of fact could properly base the verdict, giving the Commonwealth the benefit of all reasonable inferences from the evidence, Commonwealth v Madison, 263 Pa.Super. 206, 210, 397 A.2d 818, 820 (1979), and then ask whether, so viewed, the evidence was sufficient to prove guilt beyond a reasonable doubt, ...