Commonwealth v. Lightly , 307 Pa. Super. 239 ( 1982 )

307 Pa. Superior Ct. 239 (1982) 453 A.2d 14

COMMONWEALTH of Pennsylvania, Appellant,
v.
Larry D. LIGHTLY.

Superior Court of Pennsylvania.

Submitted January 20, 1982. Filed November 30, 1982.

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellee.

Before JOHNSON, WATKINS and LIPEZ, JJ.

WATKINS, Judge:

This is an appeal by the Commonwealth from the judgment of sentence imposed by the court below on the defendant-appellee after conviction, non-jury, of robbery and related offenses. The defendant's post-trial motions were denied.

At the sentencing hearing, the Commonwealth for the first time raised the Act of November 26, 1978; P.L. 1316 No. 319 (42 Pa.C.S.A. 9721). The defense contends that this act should not be applied to the defendant because his prior convictions which made him a repeat defendant occurred before the effective date of the Act.

The court below sentenced the defendant to twenty-three (23) months confinement on the robbery conviction, but suspended sentence on the remaining charges.

The Commonwealth made no objection to the ruling of the court at the sentencing hearing concerning the act in question nor did the Commonwealth file a motion for reconsideration of the sentence with the court below in accordance with Pa.Rule Crim.Pro. 1410, but filed this appeal.

The court below found that the Commonwealth failed to follow proper procedure in its limited right to appeal in failing to file in writing the application of the Act of 1978, supra. The court also found that the Commonwealth failed to comply with Rule 1410 Pa.Rules Crim.Pro. by filing a motion with the court below for modification of the sentence in view of the Act in question so that the sentencing court had the first opportunity to consider it. We agree with the latter and find that the Commonwealth failed to preserve the sentencing issues.

The appeal of the Commonwealth is quashed.