Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Section, Trial Division, of Philadelphia County, at No. 172 April Term, 1974. NO. 78 OCTOBER TERM, 1976.
Judith W. Savitz, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result.
[ 246 Pa. Super. Page 95]
Appeal is taken to our Court from Judgment of Sentence*fn1 imposed on August 26, 1975, following revocation of probation hearing. Appellant on July 1, 1974, had been sentenced to three years' probation following non-jury trial finding of guilt as to criminal trespass, an offense held by the lower court to be a lesser included offense of burglary, one of the crimes charged.*fn2 Post-trial motions had been made and denied. We are concerned only with these procedural facts, as well as the silence of the record as to any appeal filed following denial of post-trial motions.
Appellant first raises a Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899 (1975, allocatur granted), claim that criminal trespass is not a lesser included offense of the charge of burglary.*fn3 In this way appellant is attempting to attack the propriety of the conviction. However his right so to do, insofar as this issue is concerned, expired when the time to appeal the order of probation ran without his having appealed. Following a period some years ago when the state of the law was in a state of flux to a great degree, our Supreme Court spoke out quite definitively in Commonwealth v. Elias, 394 Pa. 639, 149 A.2d 53 (1959), when it held that a criminal defendant has the right to appeal from an order of probation. It is no longer to be countenanced that such an order, as well as an order suspending sentence, is considered to be interlocutory. Recently, in Commonwealth v. Gilmore, 465 Pa. 202, 348 A.2d 425 (1975), the Elias, supra, holding was reaffirmed, our Supreme Court
[ 246 Pa. Super. Page 96]
pointing out that "the knowing failure to appeal from the order of probation constitutes a waiver of the right to challenge the validity of the conviction upon which the probation order is based". 348 A.2d at 427. The review in an appeal from judgment of sentence which has been imposed following revocation of probation "is limited to the validity of the revocation proceedings and the legality of the final judgment of sentence". 348 A.2d at 427. Thus appellant here if he expected to challenge the propriety of his prior conviction was obliged to raise such a challenge in a timely appeal from the conviction and probation imposed upon him, but this he never did. Appellant does not raise an unknowing or unintelligent waiver of his right to appeal. In many cases of recent vintage the appellate courts of the Commonwealth have enunciated the strong need to present to the trial courts for correction allegations of error. As Gilmore, supra, points out, this is the position of reason in cases such as the present one because, if an appeal is not taken following imposition of probation, then "errors in the trial proceedings would go unreviewed [by that court] and 'become moot'". 348 A.2d at 427. Appellant's claim that his conviction for a lesser included offense was improper is waived.
At the probation revocation hearing,*fn4 the following transpired:
THE COURT: Mr. Sylvanus, your probation is hereby revoked. I hereby impose sentence on the burglary charge of three to ten years, and on the criminal trespass, one to five years, both sentences are to be consecutive to each other and to be consecutive to any other sentence that you are presently serving.
THE CLERK: Excuse me, Your Honor.
(Discussion held off the ...