Nos. 380 and 448 October Term, 1978, Appeal from Modified Judgment of Sentence of the Court of Common Pleas of Montgomery County at Nos. 396, 396.3, 396.4, 396.8, and 396.9 of 1976.
Ronald T. Williamson, Assistant District Attorney, Norristown, for appellant at 380 and appellee at 448.
George B. Ditter, Assistant Public Defender, Chief, Appeals Division, Norristown, for appellant at 448 and appellee at 380.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Price, J., concurs in the result. Spaeth, J., files a dissenting opinion. Jacobs, former President Judge and Hoffman, J., did not participate in the consideration or decision of this case.
[ 267 Pa. Super. Page 290]
The Commonwealth's Appeal at No. 380 October Term, 1978.
Appeal is taken by the Commonwealth from the judgment of sentence, as modified. An understanding of relevant dates is important to our disposition. After trial non-jury and adjudication of guilty on charges of robbery, criminal
[ 267 Pa. Super. Page 291]
conspiracy, terroristic threats, and firearms violation, defendant was sentenced on August 5, 1977, to a total term of 7 1/2 to 22 years' imprisonment. On August 31, 1977, defendant filed a motion to vacate and reconsider the sentence, and the lower court set September 26, 1977, as the hearing date thereon.*fn1 The sentence was not vacated pending this hearing. On said date, a hearing was begun, with the court's commenting, after discussions with Pinkney, that his pro se motion for reconsideration more than adequately met the standards of good pleading. However, the court encouraged defendant to await his trial counsel's return from vacation, for the reason that the latter was more familiar with the case and counsel appointed interim had not reviewed the matter at length. Defendant was thus left the option of continuing the reconsideration hearing until return of his attorney, or proceeding without him. Pinkney chose to have the matter continued. The Commonwealth attorney did not object and "agree[d] we should wait." An order to this effect issued. After the passing of another date set for hearing (the reasons for it do not appear on the record) the matter came on for hearing on November 4, 1977. Following said hearing, the modified judgment of sentence, presently appealed, was rendered, whereby the total term of imprisonment was reduced to 1 1/2 to 7 years.
The Commonwealth now argues that the lower court was without authority to modify the sentence when it did. This argument is based upon the Act of 1959, June 1, P.L. 342, No. 70 (12 P.S. § 1032) and its mandate that a sentencing court may "alter, modify, suspend, reinstate, terminate, amend or rescind, any . . . sentence only during the term of court in which the . . . sentence, was entered of record" or "for a period of thirty days subsequent to the date of entering of record the . . . sentence, in any
[ 267 Pa. Super. Page 292]
instance where the term of court shall terminate prior to such thirty day period: Provided, that all parties in interest, including the district attorney in criminal cases, not notified in advance . . . ."*fn2 The Commonwealth alleges that the November 4, 1977, resentencing is both beyond the term of court in which the August 5, 1977, date sentencing falls and longer than 30 days after that sentencing. It further alleges that the lower court's sole reliance upon Pa.R.A.P. Rule 1701(b), which empowers the lower court to grant reconsideration when requested, even if the case has been moved to an appellate court, is misplaced.*fn3
Ordinarily, we would agree with the Commonwealth. It is obvious that the November 4, 1977, disposition of the reconsideration matter is out of time, being apparently past the term of the sentencing court and obviously more than 30 days following sentencing. The rule generally is that a court lacks power to act past the permitted time. See Commonwealth v. Bigley, 231 Pa. Super. 492, 331 A.2d 802 (1974) and Commonwealth v. Yoder, 249 Pa. Super. 389, 378 A.2d 350 (1977). Also, Pa.R.A.P. Rule 1701(b) authorizes reconsideration by the lower court when an appeal is ...