Appeal, No. 145, April T., 1957, from order of Court of Oyer and Terminer of Beaver County, Sept. T., 1956, No. 5, in case of Commonwealth of Pennsylvania v. George Elias. Appeal quashed.
James B. Ceris, with him Samuel L. Goldstein, for appellant.
Richard P. Steward, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
[ 186 Pa. Super. Page 138]
This is an appeal from an order of the Court of Oyer and Terminer of Beaver County, suspending sentence and placing the appellant on probation, after his conviction for receiving stolen goods.
[ 186 Pa. Super. Page 139]
The appellant, George Elias, was a store owner, residing in Aliquippa, Pennsylvania, who was charged with receiving stolen goods, consisting of 120 cartons of cigarettes alleged to have been stolen from the Pittsburgh Mercantile Company by two boys and purchased from them by the appellant. He was also charged with conspiracy to defraud the company from whom the cigarettes were stolen. The jury acquitted him of the conspiracy charge and convicted him of receiving stolen goods. Motions by the appellant in arrest of judgment and for a new trial were overruled by the trial judge and his action affirmed by the court en banc. Whereupon the court below entered the following order from which this appeal was taken. "AND NOW, this 8th day of May, 1957, the defendant George Elias being before the Court is asked if he has anything to say, etc., whereupon sentence is suspended; Defendant is placed on probation for a period of five (5) years on condition that he pay the costs of prosecution and $500.00 for the use of Beaver County and be of good behavior in the future. It is further ordered that defendant make restitution of the wholesale value of the cigarettes taken from the Pittsburgh Mercantile Company".
The appeal in this case does not lie. As was said by President Judge KELLER in Com. ex rel. Paige v. Smith, 130 Pa. Superior Ct. 536, 198 A. 812 (1938), "An examination of the provisions of section 1 of the Probation Act shows that the placing of the defendant on probation on such terms and conditions as the court may deem right and proper is regarded as a judgment, and the terms and conditions of probation are directed to be duly entered of record 'as a part of the judgment in such case'. But it is not a final judgment of sentence. The act is clearly to the contrary. It is rather an interlocutory judgment, in the nature of a conditional order placing the defendant
[ 186 Pa. Super. Page 140]
under the supervision and control of the court,...". See also Com. v. Wright, 383 Pa. 532, 119 A.2d 492 (1956); Com. v. Mellon, 81 Pa. Superior Ct. 20 (1923); Com. v. Carelli, 90 Pa. Superior Ct. 416 (1927); Com. v. Torr, 111 Pa. Superior Ct. 178, 169 A. 238 (1933); Com. v. Rankin, 158 Pa. Superior Ct. 1, 43 A.2d 436 (1945); Com. v. Heintz, 182 Pa. Superior Ct. 331, 126 A.2d 498 (1956).
It is true that this rule is not inflexible and will yield in exceptional cases to safeguard basic human rights: Com. v. Trunk, 311 Pa. 555, 167 A. 333 (1933); Com. v. Ragone, 317 Pa. 113, 176 A. 454 (1935); Com. v. Haines, 130 Pa. Superior Ct. 196, 196 A. 621 (1938); Com. v. Fox, 181 Pa. Superior Ct. 292, 124 A.2d 628 (1956). In Com. ex rel. Holly v. Ashe, 368 Pa. 211, 82 A.2d 244 (1951), the Supreme Court cites Com. ex rel. Paige v. Smith, supra, as authority for the proposition that judgment in a criminal case is the sentence and not the conviction, and comments at page 218, in regard to Com. v. Trunk, supra, by saying that this case is "special to its peculiar facts" and that it "does not derogate from the foregoing in the slightest; it expressly recognized the general rule '... that appeals may not be taken in criminal proceedings where judgment of sentence has not been passed'". The peculiar circumstances in the Fox, Ragone, ...