*1 Pennsylvania, COMMONWEALTH Appellee, Appellant. GILMORE, Marion Walton Supreme Pennsylvania. Court of
Argued Nov. 1974. Decided Oct. 1975. Rehearing Denied Dec. 1975. *2 Philadelphia, appellant. Dolfman, for Bruce M. Fitzpatrick, Atty., A. Richard F. Emmett Dist. Atty., Asst. Sprague, Goldblatt, 1st Asst. Dist. Steven H. Ledbetter, Chief, Appeals Div., Asst. Atty., Bonnie Dist. Chief, Atty., Atty., Sendrow, Dist. Mark Asst. Dist. Asst. Appeals Deputy Atty. Div., Gafni, for Dist. Abraham J. Law, appellee. Philadelphia, for JONES, J., EAGEN, O’BRIEN, ROB-
Before and C. MANDERINO, ERTS, NIX and JJ. THE
OPINION OF COURT EAGEN, Justice. by counsel, 8, 1971, December while assisted
On pleas appellant, Gilmore, of Marion entered Walton guilty charging him (1) to two indictments: conspiracy of one with in connection the homicide with (2) charging mur- Alexander; him with the Charles and pleas, acceptance guilty der of After of the Alexander. degree evidentiary hearing of to determine the ensued guilt following indictment, on the murder and Gil- adjudged voluntary manslaughter. guilty more was imposed prison 28, February 1972, the trial court On twenty-three to months sentence of eleven and one-half conspiracy prison on sentence conviction and manslaughter years conviction, five to ten on the but mediately sus- stated that this last sentence would be pended year probation. ten term of Such favor an order of then No motion was entered. any nature, pleas, motion of filed withdraw the nor was Likewise, not entered. the trial was court. aggra- 1973, guilty April 9, was found Gilmore On prison this con- robbery, on and was sentenced vated years. to ten On November for of four viction hearing, the trial found court 1973, after a counseled 28, on Feb- the terms of Gilmore violated sen- 28, the order of ruary revoked the 1971 prison to ten him for five tenced directed manslaughter This sentence was conviction. concurrently imposed on the prison sentence run with the robbery then followed. This conviction. validity challenge now does not Gilmore on November proceedings conducted the revocation authority propriety court’s nor the or revoking previous His attack is order of pleas guilty entered solely directed pleas were not these December 1972. He. contends *3 pleas intelligent the knowing at the time and because upon charges the the which were entered the nature of explained.” “adequately not indictments based was were 198, Ingram, v. 455 316 77 Commonwealth Pa. Cf. (1974). may not be circumstances, issue Under the this raised date. at late Douglas not contend he was denied his
Gilmore does rights February 28, appeal from the order of placing probation ten Nei- him on for a years. appeal knowing he the ther does contest that failure.to plea following judgment from final a a of sentence precludes subsequent guilty to a criminal a indictment validity guilty plea. But, says, the he attack on the probation not placing a is order a defendant judgment and, although appealable, final it is the defend- obliged appeal judgment en- ant not final is is until a judgment may appeal from the final tered and in an challenge validity the the of the conviction from which probation language in Common- flowed. order Certain Pa.Super. 536, Paige Smith, 198 A. wealth v. ex rel. approval (1938), in Com- quoted with this Court
[*] Elias, v. monwealth 149 A.2d is Pa. support position.1 view, in In the cited of this our lan- guage cited is misconstrued.
It criminal de is true that order probation appealed the fendant on need not be and fail appeal preclude subsequent so ure to does following imposed judgment from the final of sentence ex revoking an order See Commonwealth the Elias, Paige Smith, v. supra, r'el. and Commonwealth following supra. However, the in such an judgment, validity the of the rev is the review limited judg proceedings legality ocation and of the final the knowing ment of The failure to from sentence. the order of constitutes waiver challenge validity upon which the conviction pointed Elias, su is based. As we out may pra at 149 A.2d at of sentence placed never be on a criminal defendant who appeala hence, an order is unless such ble, proceedings go errors in unreviewed the trial would possi and “become moot.” To such an unfair foreclose preced bility, bring finality proceedings to the which it, opportuni give aggrieved ed and to defendant ty upon challenge which the conviction although probation order, it is based a nature, appealable. is made
Judgment affirmed. language *4 1. The is as follows: a opinion placing “We are of . an order defend- . that probation, of ant on in Act the circumstances authorized (P.L. seq., 1055), judgment § from which 1911 P.S. is a 1051 et appeal committed may defendant if that was he claims error trial, appeal must on the is not a from he but it sentence which forty-five pain losing his days entry, within after of appeal of subsequently violation from a for sentence judg- many the ments, other terms and Like conditions his character, al- interlocutory is from which an obliged . . until lowed . the defendant is judgment en- cases is a sentence —is criminal —which tered.” 394 Pa. at 54-55. at
ROBERTS, concurring J., opinion. filed a MANDERINO, J., dissenting opinion. filed J., POMEROY, participate did not in the consideration or decision of this case.
ROBERTS, (concurring). Justice majority’s
I concur in the my In view an order result. imposing a term of is on a criminal defendant judgment say of sentence and this Court so. should
In
Vivian,
Commonwealth v.
The
today’s
effect of
is to make such
decision
appealable judgment
pur-
an order an
for all
sentence
poses.
any
judgment
sentence,
As with
other
the fail-
ap-
ure
the order within the
for
allowed
peals
judgments
appellant
from
foreclosed
sentence
now,
from asserting,
the errors claimed to have occurred
at trial. To the extent that Commomvealth
Elias,
v.
Pa.
MANDERINO, (dissenting). Justice appellate I For courts of this dissent. Com- saying monwealth have been that defendant is appealed entered, may need not be at the time it is be but appealed imprisonment at the time a sentence posed (if imposed). such a sentence In Common- is ever Elias, 639, 642, wealth 54-55 394 Pa. 149 A.2d (1959), we said such an order may appeal
“is a from which the defendant from, ap- . . . but it is not a sentence he must which *5 pain entry, forty-five peal days after within subsequently losing right appeal from a sentence his conditions terms and for violation original) probation” (emphasis his Vivian, 192, 231 A.2d 426 Pa. In Commonwealth v. repeated that an order Elias, supra, (1967), citing we “ interlocutory, hile a defendant [w] order, added.) (emphasis appealable is an
. pointed Superior out that Likewise, has Court the quash as in- many practice to it was “[f]or proba- imposition of terlocutory, appeals [from exception in necessary to make an it tion], unless was (citations rights.” safeguard basic human order omitted) Pa.Super. 230, Hendrick,
Commonwealth v. (1962).
A.2d 162
expressed
recently
1975, Judge Spaeth
And
as
as
Tom-
concurring opinion
Commonwealth v.
Rule in a
stating
Pa.Super.
that
lin,
147,