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COMMONWEALTH v. ELIAS (03/16/59)

March 16, 1959

COMMONWEALTH
v.
ELIAS, APPELLANT.



Appeal, No. 207, March T., 1958, from order of Superior Court of Pennsylvania, April T., 1958, No. 145, quashing appeal from order of the Court of Quarter Sessions of Beaver County, Sept. T., 1956, No. 5, in case of Commonwealth of Pennsylvania v. George Elias. Order vacated.

COUNSEL

James B. Ceris, with him Samuel L. Goldstein, for appellant.

Richard P. Steward, District Attorney, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones and Cohen, JJ.

Author: Jones

[ 394 Pa. Page 640]

OPINION BY MR. CHIEF JUSTICE JONES.

The appellant was tried on indictments charging him with receiving stolen goods and conspiracy to defraud the corporate owner of the property purloined. The jury found him guilty of the first charge but acquitted him of the second. After the defendant's motions in arrest of judgment and for a new trial had been overruled, the trial court entered an order suspending

[ 394 Pa. Page 641]

    sentence and placing the accused on probation for a period of five years on condition that he pay the costs of prosecution, a further sum of $500 for the use of Beaver County and that he make restitution to the owner of the stolen goods. The defendant appealed to the Superior Court which ruled that the order suspending sentence and placing the defendant on probation was interlocutory and unappealable. The appeal was accordingly quashed but not until after the court had passed upon the merits of the appellant's assignments of error - a course of procedure obviously not permissible if, as the court had concluded, its appellate jurisdiction was not competently invoked. We granted an allocatur, primarily, for the purpose of reviewing the ruling on the question of the order's appealability.

It is, of course, true that an order placing a convicted defendant on probation is interlocutory contrasted with a judgment of sentence which is final and, by statute, appealable within forty-five days of its entry. But, that does not mean that an order suspending sentence and placing a defendant on probation is not appealable. Interlocutory orders or decrees which have the effect of putting a litigant out of court or are capable, as in the present instance, of ultimately constituting a conclusive adjudication of the defendant's guilt are appealable. An example falling within the latter category would be where a convicted defendant, who has been placed upon probation, abides by the conditions of his probation and at its termination is discharged. If an appeal were to be denied him because of the interlocutory nature of the order suspending sentence and placing him on probation, his conviction, as so established, would stand against him for all future time and amount to a virtual admission of guilt without any review for alleged trial error.

[ 394 Pa. Page 642]

That such an order is appealable was plainly so recognized by President Judge KELLER in a cogent dictum in Commonwealth ex rel. Paige v. Smith, 130 Pa. Superior Ct. 536, 543, 198 A. 812, where he said: "We are of opinion... that an order placing a defendant on probation, in the circumstances authorized by the Act of 1911 (P.L. 1055), is a judgment from which the defendant may appeal if he claims that error was committed on the trial, but it is not a sentence from which he must appeal within forty-five days after its entry, on pain of losing his right to appeal from a sentence subsequently imposed for violation of the terms and conditions of his probation. Like many other judgments, interlocutory in character, from which an appeal is allowed, (e.g. Act of April 18, 1874, P.L. 64; Act of April 4, 1877, P.L. 53), the defendant is not obliged to appeal until a final judgment - which in criminal cases is the sentence - is entered."

In Commonwealth v. Trunk, 311 Pa. 555, 565, 167 A. 333, the rule that "appeals may not be taken in criminal proceedings where judgment of sentence has not been passed" was modified to the extent that convictions on indictments for which the defendant was not sentenced were reviewable on appeal along with appeals from convictions on which judgments of sentence had been entered against the same defendant for "offenses [which] were part of a continuous series of events...."As President Judge KELLER observed in the Paige case, supra, at p. 542, "The extent of that modification [in the ...


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