No. 390 Pittsburgh, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Cambria County, Pennsylvania, Criminal Division at No. 1980-0150.
Robert D. Gleason, Johnstown, for appellant.
Dennis M. McGlynn, Assistant District Attorney, Ebensburg, for Commonwealth, appellee.
Brosky, Cirillo and Popovich, JJ.
[ 298 Pa. Super. Page 54]
The appellant, George L. Corson, Jr., entered a plea of guilty to third degree murder before Judge Eugene Creany in the Court of Common Pleas of Cambria County. On February 10, 1981, appellant was committed to the Western Correctional, Diagnostic and Classification Center located at the State Correctional Institution, Pittsburgh, Pa., for a term of not less than 10 years nor more than 20 years. Thereafter, on March 10, 1981, appellant filed an appeal to this Court from the judgment of sentence. Pa.R.App.P. 903(a). We affirm.
Before deciding the merits of appellant's claim attendant to the original sentence imposed, we find it necessary to discuss the assertion in appellant's brief, which is not disputed by the Commonwealth, that the instant appeal is also from the lower court's order denying appellant's "Motion To Modify Sentence." To start with, our perusal of the record indicates no notice of appeal being filed from the order denying said Motion.
Even if, arguendo, we were to agree that such appeal was perfected by the accused, it would have to be dismissed.*fn1 To explicate, prior to the appeal from the judgment of sentence, appellant submitted, on February 20, 1981, a timely motion to modify the sentence. Pa.R.Crim.P. 1410. Pursuant thereto, the lower court issued an order dated February 23, 1981 that, inter alia, "[a] hearing on the merits of [appellant's] Petition [Motion] shall be heard on the 11th day of March, 1981 . . . ." (Record No. 33) From an order dated March 11, we learn that the matter of the modification
[ 298 Pa. Super. Page 55]
of sentence was heard, but that the lower court made no "dispos[ition] of this motion." (Record No. 35) Rather, another proceeding ("hearing") was conducted on July 7, 1981, at which time counsel for appellant argued in favor of having the sentence reduced. On August 26, 1981, the lower court issued an order, accompanied by an Opinion, denying appellant's Motion.
It cannot be discounted that the lower court did not vacate the prior judgment of sentence, either in connection with granting the motion for modification or in order to have additional time within which to consider the motion. Such procedure would have had the same effect as an express order granting reconsideration under Pa.R.App.P. 1701.*fn2 See Comment to Pa.R.Crim.P. 1410. Hence, the 30-day period for appeal ran continuously. Commonwealth v. Wilkinson, 260 Pa. Super. 77, 79, 393 A.2d 1020, 1021 (1978). As a result, the sentencing court had only 30 days from the imposition of sentence within which to act to modify the sentence. See Comment to Pa.R.Crim.P. 1410; see also 42 Pa.C.S.A. § 5505 (Pamphlet, 1980); Pa.R.App.P. 1701. Consequently, the lower court did not have jurisdiction over the case so as to conduct a hearing (on July 7, 1981) regarding the merits of appellant's motion for modification of sentence some four and one-half (4 1/2) months after the Motion was filed (on February 20, 1981). Ibid. Ergo, appellant's March 10, 1981 notice of appeal was not rendered inoperative. See, e.g., Commonwealth v. Dorman, 272 Pa. Super. 149, 151 n. 2, 414 A.2d 713, 715 n. 2 (1979); Comment to Pa.R.Crim.P. 1410; Pa.R.App.P. 1701(b)(3). Therefore,
[ 298 Pa. Super. Page 56]
since there is no evidence of record that an appeal was filed from the August 26, 1981 order, we dismiss that portion of appellant's case and treat the instant appeal as one taken solely from the judgment of sentence.*fn3 See ...