Commonwealth v. Moyer

617 A.2d 744, 421 Pa. Super. 102, 1992 Pa. Super. LEXIS 4013
CourtSuperior Court of Pennsylvania
DecidedNovember 30, 1992
DocketNo. 03531
StatusPublished
Cited by8 cases

This text of 617 A.2d 744 (Commonwealth v. Moyer) 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. Moyer, 617 A.2d 744, 421 Pa. Super. 102, 1992 Pa. Super. LEXIS 4013 (Pa. Ct. App. 1992).

Opinion

BECK, Judge:

The issue we decide, inter alia, is whether the trial court had jurisdiction to impose sentences for robbery and burglary while appellant’s life sentence under Pa.R.Crim.P. 351 et seq. was being appealed. We find the trial court had jurisdiction. However, on an unrelated ground we vacate the sentence and remand for resentencing.

In this case appellant appeals from the judgment of sentence imposed for robbery and burglary. Appellant claims that the sentences are illegal because the trial court lacked jurisdiction. Appellant alternatively claims that the sentences constitute an abuse of the trial court’s discretion because they were manifestly excessive and the product of bias and ill-will on the part of the court. Upon careful review of the record, [104]*104we find merit to appellant’s discretionary challenges and therefore vacate the judgment of sentence.1

In February, 1987, appellant and a co-defendant broke into the residence of Josephine Weiner and removed items of personal property. During the course of this crime, Ms. Weiner was bound and gagged, beaten, and stabbed twice. She died. On June 24, 1988, appellant was found guilty of first, second and third degree murder, robbery, and burglary, all arising out of the foregoing transaction.

I.

In accordance with Pennsylvania’s Special Rules For Cases In Which Death Sentence Is Authorized, Pa.R.Crim.P. 351 et seq., the court gave a mandatory life sentence to appellant, on July 1, 1988, after the jury failed to reach a unanimous decision on whether to impose a sentence of life imprisonment or death. Pursuant to Pa.R.Crim.P. 359, appellant filed post-verdict motions which were denied. Accordingly, the judgment of sentence became final for purposes of appeal. Pa. R.Crim.P. 359(F); Com. v. Kauffman, 405 Pa.Super. 229, 592 A.2d 91 (1991).2 Appellant appealed from the life sentence; this Court affirmed, and now a Petition For Allowance of Appeal is pending review in the Supreme Court of Pennsylvania. Meanwhile, on October 29, 1991, approximately four months after imposing the life sentence, the court held a sentencing hearing in connection with appellant’s convictions for burglary and robbery. The trial court imposed prison sentences of ten to twenty years for each conviction, to run [105]*105consecutively to each other and to the previously imposed life sentence.3 These sentences, and not the life sentence, form the basis for this appeal.

The procedural background is necessary to set the stage for the present appeal, which presents an issue of first impression for this court. Appellant contends that the trial court did not have jurisdiction to sentence him on the robbery and burglary because appellant’s appeal of the murder conviction and life sentence operated as a stay upon the trial court, precluding any further proceedings. Appellant relies upon Pa.R.A.P. 1701(a) which provides:

Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other governmental unit may no longer proceed further in the matter.

Id.

In Kauffman, supra, this Court was confronted with a similar though not identical scenario. In that case, appellant, in one trial, had been convicted of first degree murder and receiving stolen property. In accordance with Rule 351 et seq., appellant was sentenced to life imprisonment by the court after a jury failed to reach a unanimous decision with regard to his sentence. Life sentence was imposed on May 20, 1989. However, appellant failed to file post-verdict motions within ten days, as prescribed by Rule 359. When appellant did file motions, in February 1990, they were denied. In July, 1990, appellant was sentenced on the conviction for receiving stolen property. Subsequently, appellant filed an appeal challenging both convictions. The issue before this court in Kauffman was whether or not appellant waived his appeal of the murder conviction, first for failing to bring post-verdict motions within ten days of sentencing, and then for failing to appeal within 30 days of disposition of post-verdict motions. The related issue in the present case was not directly implicated in Kauffman [106]*106because at the time of the sentencing hearing for receipt of stolen property no appeal was pending on the murder charge. Nevertheless, by addressing the larger question of how a party should proceed in these cases, this court shed some light on the issue presently at hand:

In the interests of judicial economy and the avoidance of piecemeal appeals, we hold that in cases where a mandatory sentence is imposed immediately after the verdict is rendered, an appeal from the Rule 359 sentence is not untimely if it is filed within thirty days of the date that sentence is imposed on the remaining counts on which the defendant had been convicted at the same trial. We also hold that it would not be error to file two appeals, one within thirty days of the denial of post-verdict motions following the murder conviction, and one within thirty days of sentence on the final charges.

Id. at 93 (emphasis added).

We are in accord with Kauffman. Because of the gravity of the potential sentences authorized or mandated for first degree murder, the legislature devised special rules of procedure to protect the defendant. If these same rules became the basis for finding inadvertent waiver, the purpose of the legislature would be thwarted. We find, additionally, that a defendant’s right immediately to appeal a murder conviction should not bar the court from imposing sentences for the remaining counts.

In the present case, we hold that the trial court did have jurisdiction to sentence appellant for robbery and burglary because the appeal that was pending related only to appellant’s murder conviction.4 The stay prescribed in Rule [107]*1071701(a), supra, is limited to matters in dispute on appeal. Pa.R.A.P. 1701(c). Pa.R.A.P. 1701(c) provides:

Where only a particular item, claim or assessment adjudged in the matter is involved in an appeal, or in a petition for review proceeding relating to a quasijudicial order, the appeal or petition for review proceeding shall operate to prevent the trial court or other government unit from proceeding further with only such item, claim or assessment, unless otherwise ordered by the trial court or other government unit or by the appellate court or a judge thereof as necessary to preserve the rights of the appellant.

Before sentencing, appellant could not and did not appeal the robbery and burglary convictions because they were not governed by Pa.R.Crim.P. 359, supra. Consequently, these convictions were not matters in dispute on appeal, and thus the trial court was not precluded from proceeding further with the disposition of those matters.

II

Having disposed of appellant’s contention that the challenged sentences were illegally imposed, we now turn to the discretionary aspects of the appeal. First we note that appellant has complied with the requirements of Com. v. Tuladziecki, 513 Pa.

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Cite This Page — Counsel Stack

Bluebook (online)
617 A.2d 744, 421 Pa. Super. 102, 1992 Pa. Super. LEXIS 4013, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-moyer-pasuperct-1992.