Appeal, No. 248, Jan. T., 1954, from order of Superior Court, Oct. T., 1954, No. 125, quashing appeal from judgment of Court of Quarter Sessions of Philadelphia County, June T., 1953, No. 784, in case of Commonwealth of Pennsylvania v. Henry Mackley. Order affirmed.
Thomas M. Schubert, with him Lemuel B. Schofield David Kanner, for appellant.
Samuel Dash, First Assistant District Attorney, with him Michael von Moschzisker, First Assistant Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
The question here presented is: Does the 45-day period allowed for an appeal from a sentence imposed by a court of quarter sessions begin to run anew if the court corrects an excessive sentence after term time?
Appellant-defendant was convicted on November 25, 1953 on two bills of indictment charging him with being concerned in the managing, conducting or carrying on of a lottery in violation of the Act of June 24, 1939, P.L. 872, § 601, 18 PS § 4601. Following argument on motions for a new trial and in arrest of judgment which were denied, the trial judge on the same day, November 25, 1953, suspended sentence on one of the convictions and imposed a sentence on the other for a term of imprisonment of "... not less than 3 Months nor more than 23 Months at separate and solitary confinement in the Philadelphia County Prison.". Later, after the 45-day limitation for taking an appeal had expired, defendant's counsel called to the attention of the sentencing judge that the sentence imposed exceeded the maximum of twelve months authorized by the Lottery Statute of 1939, supra, and on January 19, 1954, after term time, the trial judge corrected the sentence to read: "... not less than 3 Months nor more than One (1) Year in Phila. County Prison.". On January 21, 1954 defendant took an appeal to the Superior Court in which it was contended that the evidence was insufficient to support his conviction. The
Superior Court quashed the appeal as not taken in time. We allowed an appeal to this Court because the precise question involved apparently has not heretofore been presented to an appellant court and the matter is one of State-wide importance in criminal procedure.
Judge HIRT, speaking for the Superior Court, said: "We agree with the lower court that the evidence in this record is entirely sufficient to sustain the conviction but we need not discuss the case on the merits, for we are convinced that appellee's motion to quash the appeal must be granted for the reason that defendant's appeal was not taken within 45 days from the date of the original judgment and sentence. The Act of May 19, 1897, P.L. 67, § 4, 12 PS § 1136, provides: 'No appeal shall be allowed, in any case, from a sentence or order of any court of quarter sessions or oyer and terminer, unless taken within forty-five days from the entry of the sentence or order'. When an appeal is not taken in the time allowed by law, there is no room for the exercise of discretion on our part. We are obliged to quash the appeal. Fenerty Disbarrment Case, 356 Pa. 614, 52 A.2d 576; Commonwealth v. Irwin, 345 Pa. 504, 29 A.2d 68.".
Appellant's able counsel argues that since judgment in a criminal case is the sentence and not the conviction, the appeal was timely because the corrected sentence must be regarded as the final judgment, supplanting for appeal purposes the original judgment of sentence which was illegally imposed and therefore a nullity. It is true and well settled that the judgment in a criminal case is the sentence. See Commonwealth ex rel. Holly v. Ashe, 368 Pa. 211, 82 A.2d 244. ...