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COMMONWEALTH PENNSYLVANIA v. TYRONE GORDON (05/11/84)

filed: May 11, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
TYRONE GORDON, APPELLANT



NO. 3331 PHILA. 1981, NO. 1288 PHILA. 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal No. 1948-50 Feb. 1981

COUNSEL

Jacqueline M. Roberts, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, President Judge, and Wieand and Montemuro, JJ. Wieand, J., concurs in the result.

Author: Spaeth

[ 329 Pa. Super. Page 47]

This is an appeal from judgments of sentence for criminal conspiracy, burglary, and criminal trespass. Appellant argues that the evidence was insufficient; that his trial counsel was ineffective for failing to move to have his case severed from his co-defendant's case; and that his sentences were excessive. The first two arguments are without merit. On the third argument: We vacate the sentence for criminal trespass because the trespass merges with the burglary. We affirm the sentence for burglary. The trial court attempted to modify the sentence for criminal conspiracy, but by the time it made the attempt, it had lost jurisdiction. We therefore modify the sentence ourselves, so that it will be as the trial court intended.

[ 329 Pa. Super. Page 48]

Before we can consider appellant's arguments, we must resolve a procedural difficulty.

On July 20, 1981, following a non-jury trial, appellant was found guilty of criminal conspiracy, burglary, and criminal trespass. On December 2, 1981, after denying post-verdict motions, the trial court sentenced appellant to four to ten years in prison for criminal conspiracy, with concurrent sentences of ten years probation for burglary and criminal trespass. Appellant filed a timely motion for reconsideration of the sentence, and, on December 29, 1981, filed an appeal; this is Appeal No. 3331 Phila. 1981. The trial court did not hear the motion for reconsideration until March 31, 1982, when it modified the sentence for criminal conspiracy from four to ten years in prison to three to ten years; it reimposed the concurrent sentences of ten years probation for burglary and criminal trespass.

In response to the modified sentence, counsel for appellant took two actions. First, on April 5, 1982, counsel withdrew the appeal from the original sentence. Second, on April 27, 1982, counsel filed an appeal from the modified sentence; this is Appeal No. 1288 Philadelphia 1982.

The general rule regarding a trial court's power to modify a sentence is that

     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, if no appeal from such order has been taken or allowed.

42 Pa.C.S. ยง 5505 (1981).

If an appeal has been taken, then the general rule is that the trial court has no jurisdiction to modify its sentence. Pa.R.App.P. 1701(a). However, Pa.R.App.P. 1701(b)(3) contains an exception to this general rule: even after a defendant takes an appeal, the court may reconsider its sentence provided two conditions are satisfied. First, the defendant must file a motion for reconsideration of sentence "within the time provided or prescribed by law."

[ 329 Pa. Super. Page 49]

Pa.R.App.P. 1701(b)(3)(i). The time "prescribed by law" for filing of a motion to modify a sentence is "within ten days of sentence." Pa.R.Crim.P. 1410. Second, the trial court must issue "an order expressly granting reconsideration" of its sentence "within the time prescribed by these rules for the filing of a notice of appeal." Pa.R.App.P. 1701(b)(3)(ii). The ...


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