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COMMONWEALTH PENNSYLVANIA v. WILLIAM RUSCHEL (08/15/80)

SUPERIOR COURT OF PENNSYLVANIA


filed: August 15, 1980.

COMMONWEALTH OF PENNSYLVANIA
v.
WILLIAM RUSCHEL, APPELLANT

No. 970 October Term 1979, Appeal from the Judgment of Sentence Imposed on April 24, 1979 by the Court of Common Pleas, Criminal Division for Luzerne County, on Information Nos. 91 and 302 of 1979

COUNSEL

Jonathan Blum, Assistant Public Defender, Wilkes-Barre, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Wickersham, Brosky and Eagen, JJ.*fn*

Author: Per Curiam

[ 280 Pa. Super. Page 188]

On March 19, 1979, appellant, William Ruschel, pleaded guilty to the charges of theft and criminal conspiracy to commit burglary. The court imposed a prison sentence of two and one-half years less one day to five years less one day to commence at the expiration of the prison sentence Ruschel was then serving.*fn1 He was ordered to pay the costs of prosecution and to serve the sentence in the Luzerne County Prison. This appeal followed.

Ruschel's sole claim is that the sentence was excessive. This issue has been waived.

Rule 302(a) of the Pennsylvania Rules of Appellate Procedure*fn2 provides that issues not raised in the trial court are waived and cannot be raised for the first time on appeal. Ruschel's complaint of sentence excessiveness was not raised until this appeal. It is therefore waived.

Prior to July 1, 1978, there was no established procedure for appellate review of a sentence within authorized limits.*fn3 In Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), this matter was referred to the Procedural Rules Committee, and, as a result, Pa.R.Crim.P. 1410 was drafted and later adopted by the Supreme Court. This rule establishes the correct procedure for that review.*fn4

The proper procedure to preserve a challenge to a sentence is to file in the trial court a written motion to

[ 280 Pa. Super. Page 189]

    modify sentence within ten days of the imposition of sentence.*fn5 The purpose of this rule is to initially provide the sentencing court with the opportunity to modify the sentence. This follows the general principle of Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) that a specific, timely objection will insure a trial court an opportunity to correct its own errors and not place the appellate court in the position of deciding an issue on which the trial court has not ruled.

Since Pa.R.Crim.P. 1410 became effective on July 1, 1978 and Ruschel was sentenced on April 4, 1979, a motion to modify sentence was the proper procedure to preserve the issue of the excessiveness of the sentence. Since Ruschel did not follow the procedure mandated by the rule, the issue has not been preserved.


*fn* Chief Justice MICHAEL J. EAGEN of the Supreme Court of Pennsylvania, is sitting by designation.


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