Commonwealth v. Firmstone

On February 25, 1952, Nathaniel Firmstone was indicted under no. 26 *484December sessions, 1951, charged with burglary and larceny. He was tried before a jury on February 29, 1952, and on March 3, 1952, was found “guilty as charged.” Motions in arrest of judgment and for a new trial were filed on his behalf. On May 20, 1952, the court rendered an opinion and order refusing both motions.

On May 19, 1952, petitioner pleaded guilty under indictment no. 27, December sessions, 1951, to aggravated assault and battery and robbery with accomplice.

On May 21, 1952, petitioner was sentenced under both indictments to life imprisonment under the Habitual Criminal Act. Since that date, he has made five applications for writs of habeas corpus and three applications for writs of coram nobis.

All were denied and dismissed. Several were appealed and in such instance the order of this court was affirmed, the latest being November 16, 1961: Commonwealth ex rel. Firmstone v. Russell, 196 Pa. Superior Ct. 292.

Nathaniel Firmstone has now filed a petition labelled “Appeal Nunc Pro Tunc” under no. 26, December sessions, 1951, and no. 27, December sessions, 1951. Petitioner asks the court “to review the sentence imposed and to modify it as justice and equity require.”

The time within which an appeal may be taken is fixed by an Act of Assembly (Act of May 19, 1897, P. L. 67, sec. 4, as amended May 11, 1927, P. L. 972, 12 PS §1136), and a court has no power to extend the time for taking an appeal or to allow an appeal nunc pro tunc except where there is a showing of fraud or its equivalent. See Commonwealth v. Wright, 187 Pa. Superior Ct. 39. There is no allegation of fraud or its equivalent in the petition before us.

Petitioner asks the court to review the life sentence imposed. This we have done and we are of the opinion *485that it is a proper sentence and this petition is refused and dismissed.

Order

And now, April 12, 1962, the prayer of the petition is refused and denied and the petition is hereby dismissed.