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COMMONWEALTH v. KEYSOCK (09/22/75)

decided: September 22, 1975.

COMMONWEALTH
v.
KEYSOCK, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lancaster County, No. 739 of 1973, in case of Commonwealth of Pennsylvania v. Ernest J. Keysock, Jr.

COUNSEL

Philip M. Cullen, Assistant Public Defender, and Theodore S. Danforth, Public Defender, for appellant.

Charles A. Achey, Jr., 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 Spaeth, J.

Author: Spaeth

[ 236 Pa. Super. Page 477]

On January 27, 1973, the car in which appellant and his wife were riding was involved in an accident with another car on Route 30 in Lancaster County. An investigating police officer found appellant and his wife lying on the road near their car. Glindon Ashbrook, the driver of the other car, died as a result of the injuries he sustained in the collision. Appellant was arrested on April 5, 1973, and charged with involuntary manslaughter. A pre-trial motion was filed to suppress a statement by appellant that he was the driver of his car. After a hearing, the motion was denied, and appellant was brought to trial before President Judge Johnstone and a jury. At the conclusion of the Commonwealth's case, appellant filed a demurrer to the evidence, but the trial judge overruled it. The jury in due course returned a verdict of guilty. Motions in arrest of judgment and for a new trial were denied by the court en banc, and appellant was sentenced to a term of six to twelve months in the Lancaster County Prison and was ordered to pay a fine of $200 plus costs.

Appellant raises four issues on appeal: that the trial judge erred in refusing to suppress appellant's pre-trial statement; that he erred in admitting into evidence opinions

[ 236 Pa. Super. Page 478]

    by eyewitnesses concerning the speed of appellant's vehicle; that he erred in admitting into evidence the expired state inspection sticker from appellant's car; and that the evidence was insufficient to support appellant's conviction. The first question we must decide is which of these issues is properly before us.

Appellant's post-trial motions do not raise the issues concerning the witnesses' opinions and the inspection sticker. He therefore is precluded from raising those issues on appeal. Commonwealth v. Blevins, 459 Pa. 652, 331 A.2d 180 (1975); Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975); Commonwealth v. Kearney, 459 Pa. 603, 331 A.2d 156 (1975); Commonwealth v. Reid, 458 Pa. 357, 326 A.2d 267 (1974); Commonwealth v. Agie, 449 Pa. 187, 296 A.2d 741 (1972); Pa. R. Crim. P. 1123. The other two issues, the suppression issue and the sufficiency issue, were raised in the post-trial motions. Since those issues were also raised at trial, it would seem that they were properly preserved for appeal. The court en banc, however, opens its opinion with the statement that "[t]he only question argued by defense counsel, both orally and in his brief, was whether the defendant's admission that he was driving the car which caused the victim's death was properly admitted into evidence. No question was raised that the evidence did not support the verdict in quantity and quality and no error was alleged in the charge." Slip Op. 1. The court then proceeds to consider only the suppression issue. From this it is clear that that issue is properly before us on appeal. In regard to the sufficiency issue, however, a novel question is presented: Apparently the court en banc considered the issue either waived or abandoned (the court did not say which); but was it?

A litigant must do two things in order to preserve an issue. First, he must make a timely, specific objection at trial. Commonwealth v. Williams, 458 Pa. 319, 326 A.2d 300 (1974); Commonwealth v. Kuterbach, 458 Pa. 318,

[ 236 Pa. Super. Page 479326]

A.2d 283 (1974); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). And second, he must raise the issue on post-trial motion. Commonwealth v. Blevins, supra; Commonwealth v. Bronaugh, supra; Commonwealth v. Kearney, supra; Commonwealth v. Reid, supra; Commonwealth v. Agie, supra. Here, appellant met both of these requirements. He raised the sufficiency issue at trial by his demurrer to the evidence, and he raised it on post-trial motion by listing it as a reason supporting the motion. Accordingly, the issue cannot be considered waived.

Our appellate courts have generally considered an issue to have been abandoned when the party has properly preserved the issue at trial but then failed to pursue it on appeal. See Commonwealth v. Piper, 458 Pa. 307, 310 n.5, 328 A.2d 845, 847 n.5 (1975) ("Failure to pursue an issue on appeal is just as effective a forfeiture as is the failure to initially raise the issue."); Yefko v. Ochs, 437 Pa. 233, 236 n.1, 263 A.2d 416, 418 n.1 (1970); Harman v. Chambers, 358 Pa. 516, 522, 57 A.2d 842, 845 (1948). So far as this court is concerned, what this means is that the appellant must file a brief with each specific issue listed as one of the "Statement of Questions Involved." Rule 22 of the Superior Court Rules requires the appellant to file a brief before argument, and provides that if he does not, the appeal will be dismissed. Rule 42, in turn, requires the appellant to list his legal arguments in a section of the brief entitled "Statement of Questions Involved," and warns that this requirement "is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be ...


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