Opinion
June 13, 1958.
September 11, 1958.
Criminal law — Practice — New trial — Statute of limitations — Raising question after verdict.
Where it appeared that, following convictions and sentences of defendant in the court of quarter sessions on charges of obstructing justice, the judgments of sentence were affirmed by the Superior Court, whose decision in this regard was subsequently affirmed by the Supreme Court; that thereafter defendant presented in the court below motions in arrest of judgment nunc pro tunc; that defendant contended that the indictments on their face clearly showed that the statute of limitations barred the prosecution, and that in the appeals neither appellate court had passed upon the propriety of the convictions; and that neither at his trial below nor in the Superior Court on appeal had defendant raised any question as to the statute of limitations, although he had belatedly attempted to raise the question in his petition for leave to appeal to the Supreme Court; it was Held that defendant's attempt in the instant proceeding to raise the question of the statute of limitations came too late.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Appeals, Nos. 164 and 165, April T., 1958, from orders of Court of Quarter Sessions of the Peace of Allegheny County, March T., 1952, Nos. 713 and 714, in case of Commonwealth of Pennsylvania v. Guy Russo. Orders affirmed.
Proceeding upon motions by defendant in arrest of judgment 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. Defendant appealed.
Louis C. Glasso, for appellant.
Earle T. Adair, 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.
Guy Russo was convicted and sentenced in the Court of Quarter Sessions of Allegheny County, inter alia, on two charges of obstructing justice. Upon appeal to this court the 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. Russo's present counsel thereafter presented in the court below motions in arrest of judgment nunc pro tunc, upon which rules were granted. Following argument before the court en banc, the rules were discharged and the motions in arrest of judgment were dismissed. Russo has appealed.
Appellant's counsel states the question involved on this appeal to be as follows: "Where it appears, after pleas of not guilty, that convictions for the common law offense of obstructing justice were secured on indictments which on their face clearly show that the statute of limitations barred the prosecution, and, in appeals from such convictions, neither the Superior Court nor the Supreme Court of Pennsylvania passed upon the propriety of such convictions, can not the defendant now raise the bar of the statute of limitations by proceeding nunc pro tunc?"
Neither at his trial below nor in this court on appeal did appellant raise any question as to the statute of limitations. We are in accord with the position of the lower court that appellant's present attempt to raise this question comes entirely too late. In Commonwealth v. Alsop, 6 Phila. 371, it was held that the defense of the statute of limitations may not be withheld until after verdict. This case was cited by President Judge KELLER in Commonwealth ex rel. Patterson v. Ashe, 154 Pa. Super. 397, 36 A.2d 249, as authority for the proposition that "the point must be raised before verdict, or it will be cured".
It should be further noted that appellant's trial counsel belatedly attempted to raise the question of the statute of limitations in his petition for leave to appeal to the Supreme Court. While the appeal was allowed, as previously indicated, appellant's convictions for obstructing justice were affirmed. Counsel for appellant argues that the opinion of the Supreme Court does not "deal with or discuss or dispose of this error". Our intepretation of such circumstance is that it is equivalent to a rejection of the contention. See Commonwealth v. Carr, 137 Pa. Super. 546, 10 A.2d 133.
The orders of the court below are affirmed.
WOODSIDE, J., did not participate in the consideration or decision of this case.