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COMMONWEALTH PENNSYLVANIA v. VAN C. LYNCH (07/23/82)

filed: July 23, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT IN NO. 184,
v.
VAN C. LYNCH, JR., APPELLANT IN NO. 1744 AND NO. 183



No. 1774 October Term, 1979, Nos. 183 & 184 Philadelphia, 1980, Appeal from the Judgment of Sentence [July 26, 1979] of the Court of Common Pleas, Criminal Trial Division, Philadelphia County [No. 1744 October Term 1979]; Appeals by Defendant [No. 183 Philadelphia 1980] and Commonwealth [No. 184 Philadelphia 1980] from Judgment of Sentence & Order [December 14, 1979] of the Court of Common Pleas, Criminal Trial Division, of Philadelphia County, Nos. 946, 948 October Term 1977

COUNSEL

Nino V. Tinari, Philadelphia, for appellant in Nos. 1744 & 183 and for appellee in No. 184.

Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellant in No. 184 and for Commonwealth, appellee in Nos. 1744 & 183.

Wickersham, Watkins and Lipez, JJ.

Author: Lipez

[ 304 Pa. Super. Page 250]

In a non-jury trial ending on April 27, 1979, defendant was convicted of robbery, possession of an instrument of crime, and criminal conspiracy. No post-verdict motions were filed. On July 26, 1979 the trial judge imposed a sentence of three to ten years imprisonment for robbery, with concurrent sentences of one to five years for the other two offenses. Defendant filed an appeal from this judgment of sentence on August 22, 1979.

On December 14, 1979 the trial judge entered an order stating that the sentence of July 26, 1979 was "vacated," and a "New Sentence" was imposed, consisting of three concurrent one-to-five year terms. The Commonwealth sought relief from the December 14 order's reduction of the sentence for robbery by filing a petition for writ of prohibition in this court on December 26, 1979. On December 28, 1979 this court entered a per curiam order, which stayed the trial court's "New Sentence" order of December 14, 1979, and ordered defendant to report to begin serving the original sentence on January 2, 1980.

Both the Commonwealth and defendant filed timely notices of appeal from the December 14, 1979 order. This court entered an order on March 14, 1980, denying the Commonwealth's petition for writ of prohibition, continuing the stay of the December 14, 1979 order, and consolidating the three appeals, which were argued together before this panel. We agree with the Commonwealth in its appeal (No. 184 Philadelphia, 1980) from the December 14, 1979 order, that the order is a nullity because the trial court was without jurisdiction to enter such an order at that time. We therefore vacate the December 14, 1979 order, and dismiss defendant's appeal from it (No. 183 Philadelphia, 1980). In

[ 304 Pa. Super. Page 251]

    defendant's appeal from his original judgment of sentence of July 26, 1979 (No. 1744 October Term, 1979), we affirm.

I.

The Commonwealth contends in its appeal that the trial court had no jurisdiction on December 14, 1979 to vacate the judgment of sentence of July 26, 1979, which defendant had appealed on August 22, 1979. We agree. Section 5505 of the Judicial Code provides:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, ...


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