220 Pa. Super. 421 | Pa. Super. Ct. | 1972
Opinion by
This is an appeal from the order of the post conviction hearing court. That court, after an extensive hearing on appellant’s petition brought pursuant to the Post Conviction Hearing Act,
In this posture, the instant appeal was taken. While the order of the post conviction hearing court was a proper order within the meaning of Section 10 of the Post Conviction Hearing Act, the appealability to this Court of that order is to be determined pursuant to the provisions of the Appellate Court Jurisdiction Act.
“In general an appeal can be taken only after sentence. ‘After verdict and judgment thereon, then, and not till then, can the alleged error be reviewed here on writ of error.’: Com. v. Ruth, 104 Pa. 294; Petition of M. S. Quay, 189 Pa. 517, 542, 42 A. 199; Com. v. Penrod, 1 W.N.C. 65. In Marsh v. Commonwealth, 16 S. & R. 318, a writ of error was quashed when it appeared that the defendant though convicted had not been sentenced. The Supreme Court said: ‘It is time enough to permit him to arrest the course of the criminal law, when he has shown that he has suffered actual injury.’ The Acts of June 24, 1895, P. L. 212, 17 P.S. 111, and May 19, 1897, P. L. 67, 12 P.S. 1133, make no provision for an appeal to this court in criminal cases except from a sentence or final judgment. Com. v. Gates, 98 Pa. Superior Ct. 591. Appeals from such orders have been quashed generally (Com. v. Mellon, 81 Pa. Superior Ct. 20) ‘in recognition of the well-established rule that final judgment in a criminal case means sentence. The sentence is the judgment’: Com. ex rel. Paige v. Smith, 130 Pa. Superior Ct. 536, 198
In the instant case there are no exceptional circumstances which warrant our hearing this appeal. Appellant is presently free on bail pending his resentence and the notes of testimony from the lengthy hearing below have not yet even been transcribed. Accordingly, this appeal is quashed as being interlocutory.
The Act of January 25, 1966, P. h. (1965) 1580, §10, 19 P.S. 1180-10.
The opinion of the post conviction court indicates that appellant’s sentence was vacated because it had been predicated upon a prior conviction which was subsequently held to be constitutionally invalid.
The Act of July 31, 1970, P. L. 673, No. 223, Art. I, 17 P.S. §211.101 et seq. It should be noted that Section 11 of the Post