Commonwealth v. Hartley

Superior Court of Pennsylvania

Commonwealth v. Hartley

302 A.2d 378, 223 Pa. Super. 541, 1973 Pa. Super. LEXIS 2169

CourtSuperior Court of Pennsylvania

DecidedMarch 27, 1973

DocketAppeal, No. 912

StatusPublished

Cited by1 cases

This text of 302 A.2d 378 (Commonwealth v. Hartley) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Commonwealth v. Hartley, 302 A.2d 378, 223 Pa. Super. 541, 1973 Pa. Super. LEXIS 2169 (Pa. Ct. App. 1973).

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Opinion

Opinion by

Hoffman, J.,

The issue before this Court on appeal is whether a sentence can be imposed on a defendant who was convicted of violating a statutory crime when that statute has been adjudged unconstitutional by our Supreme Court prior to the imposition of sentence.

On January 15, 1971, appellant was convicted of criminal libel. Sentence was deferred pending a presentence investigation. On April 10, 1972, the trial court imposed a sentence of three hundred dollars plus costs of prosecution; sentence of imprisonment was suspended, and appellant was placed on one-year probation. In the interim, prior to appellant’s sentencing, the Pennsylvania Supreme Court decided Commonwealth v. Armao, 446 Pa. 325, 286 A. 2d 626 (1972), holding that the criminal libel statute was unconstitutional.¹

[543]*543Appellant argues that since Armao was decided prior to sentencing, he should be discharged because the effect of Armao is to make appellant’s alleged acts no longer criminally proscribed. Furthermore, he argues, as the case is before this Court on direct appeal, the judgment of sentence is not final, and we may apply Armao to grant appellant relief. We agree.²

In Commonwealth v. Little, 432 Pa. 256, 248 A. 2d 32 (1968), our Supreme Court held that an appellant on an appeal nunc pro tune could avail himself of an intervening Supreme Court decision condemning the admissibility of a tacit admission in a criminal conviction.³ In ruling that its decision in Little did not imply a retroactive application of a decision to a prior case, the Court adopted the concept of finality employed in Linkletter v. Walker, 381 U.S. 618, 622 (1965): “By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in Mapp v. Ohio.” In accord, Commonwealth v. Simpson, 222 Pa. Superior Ct. 296, 303, 294 A. 2d 805 (1972).

As Armao, supra, was decided prior to imposition of sentence, and as the instant appeal comes directly from that judgment of sentence in a timely fashion, we are bound to reverse appellant’s conviction.⁴

The judgment of sentence is reversed, the conviction vacated, and appellant is discharged.

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Opinion by

Hoffman, J.,

The issue before this Court on appeal is whether a sentence can be imposed on a defendant who was convicted of violating a statutory crime when that statute has been adjudged unconstitutional by our Supreme Court prior to the imposition of sentence.

On January 15, 1971, appellant was convicted of criminal libel. Sentence was deferred pending a presentence investigation. On April 10, 1972, the trial court imposed a sentence of three hundred dollars plus costs of prosecution; sentence of imprisonment was suspended, and appellant was placed on one-year probation. In the interim, prior to appellant’s sentencing, the Pennsylvania Supreme Court decided Commonwealth v. Armao, 446 Pa. 325, 286 A. 2d 626 (1972), holding that the criminal libel statute was unconstitutional.¹

[543]*543Appellant argues that since Armao was decided prior to sentencing, he should be discharged because the effect of Armao is to make appellant’s alleged acts no longer criminally proscribed. Furthermore, he argues, as the case is before this Court on direct appeal, the judgment of sentence is not final, and we may apply Armao to grant appellant relief. We agree.²

In Commonwealth v. Little, 432 Pa. 256, 248 A. 2d 32 (1968), our Supreme Court held that an appellant on an appeal nunc pro tune could avail himself of an intervening Supreme Court decision condemning the admissibility of a tacit admission in a criminal conviction.³ In ruling that its decision in Little did not imply a retroactive application of a decision to a prior case, the Court adopted the concept of finality employed in Linkletter v. Walker, 381 U.S. 618, 622 (1965): “By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed before our decision in Mapp v. Ohio.” In accord, Commonwealth v. Simpson, 222 Pa. Superior Ct. 296, 303, 294 A. 2d 805 (1972).

As Armao, supra, was decided prior to imposition of sentence, and as the instant appeal comes directly from that judgment of sentence in a timely fashion, we are bound to reverse appellant’s conviction.⁴

The judgment of sentence is reversed, the conviction vacated, and appellant is discharged.

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Bluebook (online)

302 A.2d 378, 223 Pa. Super. 541, 1973 Pa. Super. LEXIS 2169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-hartley-pasuperct-1973.

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