No. 1607 April Term, 1978, Appeal from Order denying Modification of Sentence, Court of Common Pleas of Butler County, Criminal Division, C.A. No. 308 of 1978, Book 67, Page 375.
Richard E. Goldinger, Assistant Public Defender, Butler, for appellant.
Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
Spaeth, Hoffman and Van der Voort, JJ.
[ 277 Pa. Super. Page 268]
Appellant contends that the sentence imposed by the lower court was excessive. We cannot reach this issue, however, because this appeal is untimely.
Following a jury trial, appellant was convicted of aggravated assault. He did not file any post-verdict motions. On November 9, 1978, the lower court imposed sentence. On November 20, 1978, appellant filed a petition for modification of sentence. The lower court denied the petition on that date.*fn* On December 15, 1978, appellant filed this appeal from that order.
This case is controlled by Commonwealth v. Wilkinson, 260 Pa. Super. 77, 393 A.2d 1020 (1978). The defendant in that case filed a petition to reconsider his sentence thirty days after sentencing. The lower court dismissed the petition twenty days later, and appellant appealed. Our Court noted that an appeal to this Court must be filed within thirty days of the entry of the appealed order, see Pa.R.App.P. 903(a), and that our courts have strictly construed such time limitations. We held that the appeal was not properly before us because "a petition for reconsideration does not extend the time for appeal from a judgment of sentence." 260 Pa. Super. at 79, 393 A.2d at 1021. See also Comment to Pa.R.Crim.P. 1410 ("the mere filing of a motion for modification of sentence . . . do[es] not affect the running of the thirty day period for filing a timely notice of appeal, and the need for the defendant to file his appeal (both as to the merits of the case or as to the sentence) within that period"). Accordingly, because appellant did not file this appeal within thirty days of the judgment of sentence, it must be quashed.