Opinion
June 13, 1958.
September 11, 1958.
Criminal law — Practice — New trial — Power of court below to grant after expiration of term.
In the absence of an allegation of fraud or its equivalent, the common law power of the lower court to set aside a judgment and sentence and grant a new trial expires with the end of the term in which the judgment was entered.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Appeals, Nos. 161, 162, 163, 166, and 167, April T., 1958, from orders of Court of Quarter Sessions of the Peace of Allegheny County, March T., 1952, Nos. 675, 676 and 677, and 742 and 743, in cases of Commonwealth of Pennsylvania v. Alan Tanser, and Same v. Martin Scanlon. Orders affirmed.
Proceeding upon motions of defendants for new trial nunc pro tunc, filed after dismissal of appeals to Superior Court and to Supreme Court, respectively, from judgments of sentence following conviction of charges of obstructing justice.
Orders entered dismissing motions, before MONTGOMERY, BROWN, and REED, JJ., opinion by MONTGOMERY, J. Defendants appealed.
Louis C. Glasso, for appellants.
William Claney Smith, Assistant District Attorney, and Edward C. Boyle, District Attorney, for appellee.
WOODSIDE, J., did not participate in the consideration or decision of this case.
Submitted June 13, 1958.
Alan Tanser was convicted and sentenced in the Court of Quarter Sessions of Allegheny County, inter alia, on three charges of obstructing justice. Martin Scanlon was convicted and sentenced on two charges of obstructing justice. Upon appeal to this court these five judgments of sentence were affirmed. See Commonwealth v. Russo, 177 Pa. Super. 470, 111 A.2d 359. Our decision in this regard was subsequently affirmed by the Supreme Court. See Commonwealth v. Russo, 388 Pa. 462, 131 A.2d 83. Present counsel for Tanser and Scanlon thereafter presented in the court below motions for new trials nunc pro tunc, upon which rules were granted. Following argument before the court en banc, the rules were discharged and the motions for new trial were dismissed. Tanser and Scanlon have appealed.
Appellants' counsel states the question involved on this appeal to be as follows: "Where the Supreme Court of Pennsylvania, ruling that the admission of hearsay evidence, to wit: the statement of a morals offender at a magistrate's hearing, was error because it violated the constitutional right of confrontation, has set aside convictions for perjury, should not convictions for the misdemeanors of obstructing justice be also set aside by proceedings nunc pro tunc where it appears that the same hearsay evidence was admitted for the purpose of establishing the commission of the misdemeanor and where the alleged misdemeanor arose out of the same facts and circumstances as the alleged perjury?"
In the absence of an allegation of fraud or its equivalent, the common law power of the lower court to set aside a judgment and sentence and grant a new trial expires with the end of the term in which the judgment was entered: Commonwealth v. Carpenter, 163 Pa. Super. 30, 60 A.2d 407. See also Commonwealth v. Monaghan, 162 Pa. Super. 530, 58 A.2d 486. As stated by the late Justice CHIDSEY in Commonwealth v. Mackley, 380 Pa. 70, 110 A.2d 172: "There must be a time when a conviction of crime becomes no longer open to question".
We are in entire accord with the disposition of the instant proceeding by the court below. As previously indicated, the convictions now sought to be set aside were sustained both by this court and the Supreme Court. In the words of Judge MONTGOMERY: "Regardless of the merit of any reasons for these motions, the period within which this court is authorized to act in the matter is long past".
The orders of the court below are affirmed.
WOODSIDE, J., did not participate in the consideration or decision of this case.