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COMMONWEALTH PENNSYLVANIA v. ROBERT STANLEY MIDDLETON (09/27/76)

decided: September 27, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERT STANLEY MIDDLETON, APPELLANT



Appeal from the Order of Court denying Post-Conviction Relief, dated April 2, 1975, in the Court of Common Pleas of Allegheny County, Criminal Division, at No. 104 November Term, 1969. No. 537 April Term, 1975.

COUNSEL

Robert S. Middleton, for appellant.

John J. Hickton, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Jacobs, Price and Van der Voort, JJ., concur in the result.

Author: Spaeth

[ 242 Pa. Super. Page 424]

This is an appeal from an order denying appellant's petition for post-conviction relief.

On October 21, 1970, appellant was tried before a jury and found guilty of receiving stolen goods, operating a motor vehicle while under suspension, and violating the Uniform Firearms Act, Act of June 24, 1939, P.L. 872, § 628, 18 P.S. § 4628.*fn1 After the jury announced its verdict, the trial judge sentenced appellant to 2 1/2 to 5 years for receiving stolen goods, and to a consecutive sentence of 1 to 2 years on the firearms charge. Post-trial motions were filed on October 22,*fn2 and after argument before the trial judge were denied on July 28, 1971. An appeal was timely filed, but on October 17, 1972, the Public Defender petitioned to withdraw as counsel. The petition

[ 242 Pa. Super. Page 425]

    was granted and the appeal was subsequently dismissed for failure to proceed. On December 2, 1974, appellant filed a petition under the Post Conviction Hearing Act, Act of Jan. 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq., (Supp.1975), and a counseled evidentiary hearing was held before the judge who had been the trial judge. After the judge filed his opinion and order denying the petition, appellant requested a rehearing and when that request was denied, filed the present appeal.

The notes of testimony reveal the following facts. Shortly after midnight on October 7, 1969, two police officers observed appellant driving eratically and stopped him. After handing one of the officers a registration card, appellant reached into the glove compartment and placed his hand on a revolver. The officer drew his service revolver and ordered appellant to withdraw his hand. As appellant did so, he knocked a wallet to the car floor, revealing several Series E Savings Bonds. The police subsequently discovered approximately twenty-five bonds in the name of Angelo and Robert Cerminara and forty bonds belonging to Haywood Powell. At trial, Mr. Powell testified that his home had been "robbed" on September 2, 1969, and that forty-three $25.00 government savings bonds had been taken.*fn3

Appellant's brief to this court is pro se. In it, he alleges that the trial judge erred by pronouncing sentence prior to the filing and disposition of his post-trial motions; that the sentences he received were excessive and should not have been consecutive; that he was erroneously given separate trial for different offenses arising from the same criminal episode; and that the sentence imposed for possession of an unregistered firearm was illegal.

[ 242 Pa. Super. Page 426]

I

Immediately following the jury's verdict, defense counsel announced his intention to file post-trial motions. The trial judge then sentenced appellant and advised him of the necessity for filing the motions and for taking an appeal should they be denied. He added:

In view of the fact that you have already indicated that you desire to exercise the first of these rights and that is to file a motion for a new trial, the sentence that I have just imposed will be stayed pending the disposition of your motion for a new trial. If of course your motion for a new trial should be sustained, the sentences imposed will be arrested and cancelled in effect that motion is denied and that sentence becomes effective forthwith. But you still have right then to take an appeal to the Superior Court of Pennsylvania.

N.T. 170-171.

In his opinion, the trial judge stated that the sentencing procedure he followed is "resorted to by most of the judges of this court," Opinion at 3a, going on to say:

A sentence, however, which is stayed or its operational effect delayed does not change the status of the defendant. He remains either in jail, or, when appropriate, his bail is continued. A stayed or delayed sentence is not a final sentence and does not cut down the time for taking an appeal. What it does accomplish in a busy court is the elimination of the necessity for setting another day for sentencing and ...


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