Opinion
January 17, 1964.
March 20, 1964.
Appeals — Limitations — Untimely — Criminal case — Act of May 19, 1897, P. L. 67, § 4.
In view of the Act of May 19, 1897, P. L. 67, § 4, as amended (which provides ". . . No appeal shall be allowed, in any case, from a sentence or order of any court of quarter sessions or oyer and terminer, unless taken within forty-five days from the entry of the sentence or order . . ."), an appeal taken more than 45 days from the entry of sentence must be quashed on the Commonwealth's motion.
Argued January 17, 1964. Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.
Appeal, No. 313, Jan. T., 1963, from judgment of Court of Oyer and Terminer and General Jail Delivery of Philadelphia County, Aug. T., 1963, No. 528, in case of Commonwealth of Pennsylvania v. Thelma Simon. Appeal quashed.
Indictment charging defendant with murder and involuntary manslaughter. Before McCLANAGHAN, J.
Verdict of murder in the first degree entered and penalty fixed at life imprisonment, defendant's motions for new trial and in arrest of judgment denied and judgment of sentence entered. Defendant appealed.
Malcolm W. Berkowitz, for appellant.
Charles Jay Bogdanoff, Assistant District Attorney, with him Burton Satzberg and Arlen Specter, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish Jr., District Attorney, for Commonwealth, appellee.
Thelma Simon was indicted and tried for murder of her husband, James C. Simon. On March 1, 1962, the jury returned a verdict of guilty of murder in the first degree and after further deliberation fixed the penalty at life imprisonment. Thereafter, motions for a new trial and arrest of judgment were filed. The lower Court deferred sentencing defendant-appellant until these motions were decided.
On June 26, 1963, the lower Court denied these motions and sentenced defendant to the Women's State Correctional Institution at Muncy, Pennsylvania, for the term of her natural life. On August 16, 1963, fifty-one days after the judgment of sentence, appellant's counsel filed an appeal in this Court. The Commonwealth-Appellee filed a petition to dismiss the appeal because it was not taken within 45 days from the imposition of the sentence. The Act of May 19, 1897, P. L. 67, § 4, as amended, 12 Pa.C.S.A. § 1136, pertinently provides: ". . . No appeal shall be allowed, in any case, from a sentence or order of any court of quarter sessions or oyer and terminer, unless taken within forty-five days from the entry of the sentence or order . . . . Appeals taken after the times herein provided for shall be quashed on motion . . . ." Since this appeal was taken more than 45 days from the entry of sentence, the Commonwealth's motion to quash must be granted. Commonwealth v. Mackley, 380 Pa. 70, 73, 110 A.2d 172; Commonwealth v. Mackley, 175 Pa. Super. 304, 306, 104 A.2d 169; Commonwealth v. Monaghan, 162 Pa. Super. 530, 58 A.2d 486. Cf. Commonwealth v. Le Grand, 336 Pa. 511, 9 A.2d 896; Fenerty Disbarment Case, 356 Pa. 614, 619, 52 A.2d 576; Nixon v. Nixon, 329 Pa. 256, 260, 198 A. 154.
In Commonwealth v. Mackley, 380 Pa., supra, the Court said (page 73): "Judge HIRT, speaking for the Superior Court, said: 'We agree with the lower court that the evidence in this record is entirely sufficient to sustain the conviction but we need not discuss the case on the merits, for we are convinced that appellee's motion to quash the appeal must be granted for the reason that defendant's appeal was not taken within 45 days from the date of the original judgment and sentence. The Act of May 19, 1897, P. L. 67, § 4, 12 Pa.C.S.A. § 1136, provides: "No appeal shall be allowed, in any case, from a sentence or order of any court of quarter sessions or oyer and terminer, unless taken within forty-five days from the entry of the sentence or order". When an appeal is not taken in the time allowed by law, there is no room for the exercise of discretion on our part. We are obliged to quash the appeal. Fenerty Disbarment Case, 356 Pa. 614, 52 A.2d 576; Commonwealth v. Irwin, 345 Pa. 504, 29 A.2d 68.'."
Appeal quashed without prejudice to the right of Thelma Simon to file in the appropriate lower Court a petition for a writ of habeas corpus.