Appeals, Nos. 264 and 266, Oct. T., 1958, from conviction and from judgment of Court of Oyer and Terminer, General Jail Delivery and Quarter Sessions of the Peace, of Philadelphia County, Nov. T., 1957, Nos. 1137 and 1138, in case of Commonwealth of Pennsylvania v. Stanley Lewis. Appeal, No. 264, quashed; judgment in Appeal, No. 266, affirmed.
David Freeman, for appellant.
Domenick Vitullo, Assistant District Attorney, with him Juanita Kidd Stout, Assistant District Attorney, James N. Lafferty, First Assistant District Attorney, and Victor H. Blanc, District Attorney, for appellee.
Before Rhodes, P.j., Hirt, Wright, Woodside, Ervin, and Watkins, JJ. (gunther, J., absent).
[ 187 Pa. Super. Page 233]
The appellant, Stanley Lewis, was tried before a judge, sitting without a jury, and found guilty on bill of indictment No. 1137, November Sessions 1957, charging conspiracy, and on bill of indictment No. 1138, November Sessions 1957, charging burglary, larceny and receiving stolen goods. Sentence was suspended on bill No. 1137 and was imposed on bill No. 1138. He appealed in No. 264 from the suspension of sentence on the conspiracy charge and appealed in No. 266 from the sentence imposed on the charges of burglary, larceny and receiving stolen goods.
The appeal in No. 264 from the suspension of sentence is interlocutory. As a general rule an appeal in a criminal case can be taken only after judgment of sentence or some other final disposition: Com. v. Fox, 181 Pa. Superior Ct. 292, 295, 124 A.2d 628. An appeal will be allowed from a suspended sentence if great injustice would be done to the defendant by not allowing it: Com. v. Trunk, 311 Pa. 555, 167 A. 333; Com. v. Ragone, 317 Pa. 113, 176 A. 454. The present case is controlled by Com. v. Heintz, 182 Pa. Superior Ct. 331, 337, 126 A.2d 498, where we said: "Here we are sustaining the defendant's conviction of a felony. Therefore, unlike in the case of Com. v. Tluchak, 166 Pa. Superior Ct. 16, 21, 70 A.2d 657 (1950), the defendant suffers little stigma as a result of the verdict of guilty on another felony growing out of the same transaction.
[ 187 Pa. Super. Page 234]
"If we were to grant a new trial or discharge the defendant on the charge of false pretense we would consider the appeal in the fraudulent conversion case. See Com. v. Haines, 130 Pa. Superior Ct. 196, 196 A. 621 (1938); Com. v. Tluchak, supra; Com. v. Ragone, supra; Com. v. Trunk, supra. As there is no reason to make an exception to the general rule in this case, the appeal from the suspended sentence should be quashed."
The appeal in No. 264 from the conspiracy conviction, upon which sentence was suspended, will, therefore, be quashed.
No oral or written motion was made for a new trial or in arrest of judgment prior to the imposition of sentence on No. 266 on the charges of burglary, larceny and receiving stolen goods. A trial court cannot be charged with error in refusing to grant a new trial for reasons which were not properly presented to it: Com. v. Pittman, 179 Pa. Superior Ct. 645, 118 A.2d 214.
In Com. v. Mays, 182 Pa. Superior Ct. 130, 126 A.2d 530, we said that we intended to enforce the rule that matters not properly raised in the court below cannot be invoked on appeal. Although we might dispose of the appeal in No. 266 for this reason alone, we have examined the entire record and are of the opinion that there is no merit in the appeal. The appellant's contention is that the Commonwealth's evidence was insufficient to establish the guilt of the defendant. The Commonwealth's evidence established that on November 16, 1957 at approximately 12:15 a.m. police officers observed appellant and two other individuals, David Cherry and John Taylor, standing in front of a clothing store located at 720 ...