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COMMONWEALTH v. DIMITRIS (12/11/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: December 11, 1974.

COMMONWEALTH
v.
DIMITRIS, APPELLANT

Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, Nos. 1104, 1283, and 1284 of 1973, in case of Commonwealth of Pennsylvania v. Harold Groff Dimitris.

COUNSEL

Penn B. Glazier, Assistant Public Defender, and Theodore S. Danforth, Public Defender, for appellant.

Louise G. Herr, Assistant District Attorney, and D. Richard Eckman, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 231 Pa. Super. Page 470]

On September 27, 1973, appellant, Harold G. Dimitris, was found guilty of burglary and larceny, false reporting of a criminal offense, and corrupting the morals of a minor and after sentencing on these charges, took a timely appeal.

The problem before us concerns section (c) of the newly adopted Rule 1123 of the Pennsylvania Rules of Criminal Procedure, set forth as follows:

"(c) Upon the finding of guilt, the trial judge shall advise the defendant on the record:

"(1) of his right to file post-verdict motions and of his right to the assistance of counsel in the filing of such motions and on appeal of any issues raised therein;

"(2) of the time within which he must do so as set forth in paragraph (a); and

"(3) that only the grounds contained in such motions may be raised on appeal."

The record shows a complete absence of any compliance with this Rule by the lower court. The record further shows that post-verdict motions were not filed by appellant and there was not a knowing and intelligent waiver of the appellant's right to file post-verdict motions.

[ 231 Pa. Super. Page 471]

The appellant now wishes to raise certain issues on appeal and is precluded from doing so because such issues were not raised in post-verdict motions.

A similar situation arose in Commonwealth v. Grillo, 208 Pa. Superior Ct. 444, 222 A.2d 427 (1966) and just recently in Commonwealth v. Norman, 456 Pa. 252 (1974). In both of these cases the remedy to this type of problem was to remand the case to the trial court for the purpose of allowing the appellant to file the motions nunc pro tunc. We feel that this is an equitable remedy and should be applied to this case.

Therefore this case is remanded to the trial court to allow the lower court to comply with Rule 1123 and to allow the appellant to file post-verdict motions nunc pro tunc if he wishes to do so.

It is so ordered.

Disposition

Case remanded.

19741211

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