Appeal from the Judgment of Sentence of February 18, 1988 in the Court of Common Pleas of Chester County, Criminal, No. 2470 of 1987.
Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee.
McEwen, Montemuro and Kelly, JJ.
[ 380 Pa. Super. Page 449]
Appellant has undertaken this direct appeal from the judgment of sentence to a term of not less than thirty days nor more than twenty-three months, imposed by the distinguished Judge Lawrence E. Wood after appellant pleaded guilty to the offense of driving while under the influence of alcohol. 75 Pa.C.S. § 3731.
Initially, we must determine whether this appeal is properly before us. Appellant was sentenced on January 22, 1988, but in a timely motion to modify sentence, pursuant to Pa.R.Crim.P. 1410, requested that the court vacate the judgment of sentence pending a ruling upon the motion. The court, however, did not vacate the judgment of sentence, but scheduled a hearing upon the petition for February 18, 1988. The motion for reconsideration of sentence was denied on February 18, 1988, and appellant filed a notice of appeal from the judgment of sentence on March 9, 1988.
The Superior Court, on May 31, 1988, entered an order quashing the instant appeal as untimely since it had been filed more than 30 days after the imposition of sentence. This Court, however, on July 12, 1988, in response to a petition to reinstate the appeal, reinstated the appeal with a direction to the parties to address the jurisdictional issue of the timeliness of the appeal.
Appellant concedes that an appeal must be filed "within thirty days after the entry of the order from which the appeal is taken." Pa.R.A.P. 903(a). Appellant contends, however, that the following statements of the trial court extended the effective date of the sentence, for purposes of appeal, to February 21, 1988. This argument is based upon the following exchange between counsel and the court:
[ 380 Pa. Super. Page 450]
THE COURT: All right, And I can adjust the beginning point of that sentence if it's going to be helpful here.
MR. BOYER: Sir, I guess what I need to request is that bail be continued pending the filing of a motion for reconsideration and discuss the prospects of an appeal with Ms. Farmer.
THE COURT: Mr. Kane, any ...