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submitted: April 23, 1982.


No. 2660 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Northampton County at No. 430-1981.


William F. Zaun, Bethlehem, for appellant.

Donald B. Corriere, District Attorney, Easton, for Commonwealth, appellee.

Wickersham, Brosky and Wieand, JJ.

Author: Wickersham

[ 304 Pa. Super. Page 28]

On June 8, 1981, appellant appeared before the Honorable Richard D. Grifo in the Court of Common Pleas of Northampton County and entered a plea of guilty to a charge of issuing a bad check, in violation of section 4105 of the Crimes Code of Pennsylvania.*fn1 Specifically he was charged

[ 304 Pa. Super. Page 29]

    with having issued check no. 182, dated December 21, 1980, in the amount of $245.98, made payable to the order of Joe's Market, drawn on the First Valley Bank of Easton, Pennsylvania, which check was subsequently refused for insufficient funds.

At the time of the court proceedings before Judge Grifo on October 1, 1981, Boyce was serving a prison term of not less than one nor more than two years on another conviction.

The court sentenced as follows:

The sentence of the Court is that you, Dan Boyce, pay the cost of prosecution. Make restitution in full in the amount of $245.98. And that you be incarcerated in the Northampton County Prison for a period of not less than six months nor more than twelve months. And that six to twelve months shall be consecutive to the present sentence that you are serving.

However, when and if you become eligible for work release under the present sentence that you are serving, namely the one to two years, when you become eligible for work release, if you do under that sentence, this sentence should not impede you from becoming eligible for work release.

Sentencing Record at 4.

From the judgment of sentence rendered October 1, 1981, appellant has taken this direct appeal.*fn2

[ 304 Pa. Super. Page 30]

Pennsylvania Rule of Criminal Procedure 1410, entitled "Motion to Modify Sentence," reads as follows:

A motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence.

No such motion to modify sentence was filed in this case, but rather a direct appeal was taken from the judgment of sentence.

The Comment to Pa.R.Crim.P. 1410 reads as follows:

Comment: This rule provides a procedure whereby a motion to modify sentence must be raised in the first instance before the sentencing court, thereby giving that court the first opportunity to modify the sentence. If the case proceeds to an appellate court, the Rule 1405 requirement that the trial judge state on the record the reasons for imposing a sentence will provide a record concerning the sentence. However, this procedure does not affect the court's inherent power to correct an illegal sentence, or obvious and patent mistakes in its orders, at any time. Cf. Commonwealth v. Cole, 437 Pa. 288, 263 A.2d 339 (1970).

Adopted May 22, 1978, effective as to cases in which sentence is imposed on or after July 1, 1978.*fn3

We hold that where an appellant desires to challenge his sentence on the grounds of harshness and fails to file a motion to modify his sentence, such inaction constitutes waiver. Under the procedure followed instantly, the trial judge did not receive the first opportunity to modify the sentence. Commonwealth v. Ruschel, 280 Pa. Super. 187, 421 A.2d 468 (1980).

[ 304 Pa. Super. Page 31]

We hold therefore that the issue before us has been waived and, accordingly, we affirm the judgment of sentence. Jurisdiction of the Superior Court of Pennsylvania is relinquished and the lower court is directed to enforce its sentence.*fn4

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