decided: March 27, 1973.
Appeal from judgment of sentence of Court of Common Pleas of Lehigh County, No. 383 of 1971, in case of Commonwealth of Pennsylvania v. Donald Hartley.
Charles A. Harad, with him Howard M. Girsh, for appellant.
Wardell F. Steigerwalt, Assistant District Attorney, with him George J. Joseph, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J.
[ 223 Pa. Super. Page 542]
The issue before this Court on appeal is whether a sentence can be imposed on a defendant who was convicted of violating a statutory crime when that statute has been adjudged unconstitutional by our Supreme Court prior to the imposition of sentence.
On January 15, 1971, appellant was convicted of criminal libel. Sentence was deferred pending a presentence investigation. On April 10, 1972, the trial court imposed a sentence of three hundred dollars plus costs of prosecution; sentence of imprisonment was suspended, and appellant was placed on one-year probation. In the interim, prior to appellant's sentencing, the Pennsylvania Supreme Court decided Commonwealth v. Armao, 446 Pa. 325, 286 A.2d 626 (1972), holding that the criminal libel statute was unconstitutional.*fn1
[ 223 Pa. Super. Page 543]
Appellant argues that since Armao was decided prior to sentencing, he should be discharged because the effect of Armao is to make appellant's alleged acts no longer criminally proscribed. Furthermore, he argues, as the case is before this Court on direct appeal, the judgment of sentence is not final, and we may apply Armao to grant appellant relief. We agree.*fn2
In Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968), our Supreme Court held that an appellant on an appeal nunc pro tunc could avail himself of an intervening Supreme Court decision condemning the admissibility of a tacit admission in a criminal conviction.*fn3 In ruling that its decision in Little did not imply a retroactive application of a decision to a prior case, the Court adopted the concept of finality employed in Linkletter v. Walker, 381 U.S. 618, 622 (1965): "By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in Mapp v. Ohio." In accord, Commonwealth v. Simpson, 222 Pa. Superior Ct. 296, 303, 294 A.2d 805 (1972).
As Armao, supra, was decided prior to imposition of sentence, and as the instant appeal comes directly from that judgment of sentence in a timely fashion, we are bound to reverse appellant's conviction.*fn4
The judgment of sentence is reversed, the conviction vacated, and appellant is discharged.
Judgment of sentence reversed.