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COMMONWEALTH PENNSYLVANIA v. EDWARD A. CANADY (03/26/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 26, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD A. CANADY, APPELLANT

No. 704 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County at Bill Nos. 1091, 1093, 1095 and 1096 October Term, 1978.

COUNSEL

J. Hugh O'Donnell, Philadelphia, for appellant.

Ann Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, McEwen and Popovich, JJ. McEwen, J., concurs in the result.

Author: Popovich

[ 297 Pa. Super. Page 294]

Appellant, Edward Canady, was convicted after a trial by a judge, sitting without a jury, of robbery, burglary, possession of an instrument of crime, simple and aggravated assault, and criminal conspiracy. Post-verdict motions were granted in part since judgment was arrested on the burglary conviction. Appellant was sentenced to a term of imprisonment of not less than five nor more than ten years on the robbery conviction.*fn1 Terms of two years probation were imposed on the weapons offenses and on the unlawful restraint conviction. These terms were to run concurrent with each other but consecutive to the robbery conviction. This appeal followed.

Appellant raises only one issue before this Court. He contends that the trial court abused its discretion when it ordered him to proceed to trial represented by a court-appointed attorney with whom appellant was dissatisfied. We cannot address the merits of appellant's claim because it has been waived.

[ 297 Pa. Super. Page 295]

First of all, the fact that the question of waiver has not been raised by the prosecution does not foreclose this Court from raising the issue sua sponte. See Commonwealth v. Klaric, 263 Pa. Super. 286, 397 A.2d 1212 (1979).

In the instant case, the issue of whether the trial court should have granted appellant another opportunity to obtain another attorney was not raised in the written post-verdict motions filed by counsel. However, the trial court permitted appellant's counsel to amend the motions orally. See the Trial Court's Opinion at 2 ("at oral argument on post trial motions [appellant] orally amended the motions to allege error in permitting [appellant's] counsel to withdraw and the appointment of new counsel . . . ."). The trial court then addressed the merits of the issue in its opinion.

With respect to whether the scenario below was sufficient to preserve the issue, we have said that:

"a post-verdict court's erroneous consideration of orally presented allegations of error will not suffice to preserve the allegations for appellate review. E.g., Commonwealth v. Gamble, 485 Pa. 418, 402 A.2d 1032 (1979); Commonwealth v. Hagans, 483 Pa. 415, 397 A.2d 412 (1979); Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978)." Commonwealth v. Philpot, 491 Pa. 598, 600, 421 A.2d 1046, 1047 (1980). (Emphasis added).

Therefore, the issue appellant attempts to raise is waived.*fn2

In its brief, the prosecution sets forth certain facts which occurred after the notice of appeal was filed to this Court.

On March 3, 1980, as mentioned above, appellant was sentenced to a five to ten year term of imprisonment. This term was to be followed by three concurrent terms of probation. Attorney O'Donnell, who represented appellant

[ 297 Pa. Super. Page 296]

    at trial and at sentencing, filed a notice of appeal to this Court on March 25, 1980. An untimely petition for reconsideration was filed by Attorney Smalls on April 25, 1980.*fn3 A hearing was held on August 5, 1980. At the end of the hearing, the court stated the following:

"THE COURT: Well, I am willing to believe that you have changed, Mr. Canady. I remember what you were like when you came up for trial.

THE [APPELLANT]: Yes, ma'am.

THE COURT: You were not a very pleasant individual, and what I'm willing to do is to change the sentence from 5 to 10 on robbery to 2 to 10 and when you have completed the two, then you're eligible for parole.

MR. SMALLS: Thank you, Your Honor."

Sentencing Transcript at 23.

A review of the record, however, reveals that the sentencing court did not file a formal order vacating the original sentence. In any event, that court had no authority to modify the original sentence after the appeal had been taken and after more than thirty days had passed from March 3, 1980, which was the date that the sentence was first imposed.*fn4 See Commonwealth v. Leatherbury, 269 Pa. Super. 194, 197

[ 297 Pa. Super. Page 297]

    n.4, 409 A.2d 431, 433 n.4 (1979); Commonwealth v. Lauer, 265 Pa. Super. 542, 544, 402 A.2d 678, 679 (1979); see also Commonwealth v. Hanlon, 266 Pa. Super. 456, 405 A.2d 523 (1979). Accordingly, the court's attempt to modify the sentence of March 3, 1980, was null and void. See Tillman v. Pennsylvania Board of Probation and Parole, 48 Pa. Commw. 325, 409 A.2d 949 (1980). See also Commonwealth v. Pinkney, 267 Pa. Super. 288, 292, 406 A.2d 1045, 1047 (1979) (Pa.R.A.P. 1701(b) which "authorizes reconsideration by the lower court when an appeal is pending, but does not in any way affect or enlarge upon the substantive law of the statute" which mandates a 30 day time period for such action.).*fn5

We note also that because the only judgment of sentence of record is the original one which is dated March 3, 1980, there is no need to remand in order to reinstate the original judgment of sentence.

Judgment of sentence affirmed.


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