Summary
In Palmer the defendant was convicted of illegal possession of narcotics and his sole claim on appeal was that he was improperly sentenced.
Summary of this case from Com. v. KellyOpinion
March 23, 1972.
June 16, 1972.
Appeals — Abatement — Death of appellant pending appeal — Primary contention of defendant that he was improperly sentenced — No arguably meritorious substantive claims — Decision of sentencing question inappropriate, under the circumstances.
In this case, in which it appeared that the primary contention of defendant on appeal was that he had been improperly sentenced, and that no arguably meritorious substantive claims were raised; that defendant died pending the appeal; and that defendant's attorney filed a petition, joined in by the district attorney's office, requesting the appellate court to decide defendant's case because of the vital legal issues involved; it was Held, in the circumstances, that defendant's interest went no further than the sentence which he received, and that it would be inappropriate for the appellate court to decide the sentencing question in this case.
JACOBS, J., concurred in the result.
Submitted March 23, 1972.
Before WRIGHT, P.J., WATKINS, JACOBS, HOFFMAN, SPAULDING, CERCONE, and PACKEL, JJ.
Appeal, No. 1221, Oct. T., 1971, from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1970, No. 112, in case of Commonwealth of Pennsylvania v. Tyrone Palmer. Appeal dismissed.
Indictments charging defendant with illegal possession of narcotic drugs. Before STOUT, J., without a jury.
Finding of guilty and judgment of sentence entered thereon. Defendant appealed.
Abraham T. Needleman, Joel D. Caney, and Needleman, Needleman, Tabb Eisman, for appellant.
Judith Dean and Milton M. Stein, Assistant District Attorneys, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Appellant was convicted for illegal possession of narcotic drugs, a violation of The Drug, Device and Cosmetic Act. Act of September 26, 1961, P.L. 1664, § 1 et seq., 35 P.S. 780-1-31. Although appellant was not indicted as a second offender, he was sentenced as such to two to seven years imprisonment. Appellant has appealed from the judgment of sentence.
On April 13, 1972, appellant's attorney filed a petition with this Court informing the Court that appellant died on April 3, 1972. This petition, which was joined in by the District Attorney's Office of the City and County of Philadelphia, requested our Court to decide appellant's case "[b]ecause of the vital legal issues involved."
Appellant's attorney contends that we should decide this appeal under the authority of Commonwealth v. Walker, 447 Pa. 146, 288 A.2d 741 (1972). In Walker our Supreme Court indicated that where an appellant has died prior to a final appellate determination of his rights, "it is in the interest of both a defendant's estate and society that any challenge initiated by a defendant to the regularity or constitutionality of a criminal proceeding be fully reviewed and decided by the appellate process."
After careful review of the record in this case, however, we do not believe that Walker would support the continuation of appellant's appeal. Where an appellant challenges the validity of his conviction, there is no question that the appellant has substantial individual interests which would survive his death. In the instant case appellant has raised no arguably meritorious substantive claims, his primary contention being that he was improperly sentenced. In these circumstances appellant's interests go no further than the sentence which he received. It would be inappropriate, therefore, for our Court to decide the sentencing question in this case.
Appeal dismissed.
JACOBS, J., concurs in the result.