Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1973, Nos. 181, 182, and 183, in case of Commonwealth of Pennsylvania v. Eugene Woodson.
John W. Packel, Assistant Defender, and Benjamin Lerner, Defender, for appellant.
Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Concurring Opinion by Spaeth, J.
[ 234 Pa. Super. Page 72]
The appellant complains of the amendment to Rule 47*fn1 of the Superior Court of Pennsylvania which requires the submission of his case on briefs when he fails to comply with Rule 47, in regard to timely filing. In fact under the rule he was subject to the penalty of dismissal of his appeal.
[ 234 Pa. Super. Page 73]
Appellate courts have wide latitude in deciding cases without oral argument. In Pennsylvania Supreme Court Rule 71 and Superior Court Rule 64, oral argument is not ordinarily permitted in P.C.H.A. appeals. League of Voluntary Hospitals and Homes of New York v. Local 1199, Drug and Hospital Union, 490 F. 2d 1398 (Temp. Emer. Ct. of App. 1973) provided that an order reducing briefing time was permissible. NLRB v. Local No. 42, Int. Page 73} Ass'n. of Heat and F.I. & Asbestos Workers, 476 F. 2d 275 (3d Cir. 1973) upheld the validity of a rule which permits dispensing with oral argument.
The rule was designed to require the submission on briefs without oral argument when the appellant violated Rule 47 by failing to file his briefs timely. This avoided the necessity of imposing the more serious penalty provided by Rule 47, to wit: "If Appellant fails to comply with the above requirements within the time specified, or any extension thereof duly allowed, the appeal may be dismissed." And, of course, its purpose was designed to avoid large backlogs caused by delays in failing to file briefs and multiple continuances. This is clearly within the power of the Court and the parties are given time to advance their arguments by briefs so that there can be no prejudice by the lack of oral argument.
The appellant also complains because the trial judge found the appellant guilty of burglary, and not guilty of theft which he contends are inconsistent verdicts. The court treated it as a merger. This question was not raised below and is waived. However, § 3502 (d) of the Pennsylvania Crimes Code permits this type of verdict, in fact, requires it.
"(d) Multiple convictions -- A person may not be convicted both for burglary and for the offense which it was his intent to commit after the burglarous entry or for an attempt to commit that offense, unless the additional ...