Neil Jokelson, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Asst. Dist. Atty., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., concurs in the result.
Appellant, William Fortune, age thirteen, was tried as an adult and found guilty of murder in the second degree and not guilty of robbery by a jury in Philadelphia. Motions in arrest of judgment and for new trial were denied,*fn1 and Fortune was sentenced to imprisonment in an adult facility from six to twenty years. This appeal followed.*fn2
Appellant contends that the trial court erred in admitting testimony of robberies other than the one charged in the indictment which culminated in the murder. However, before we reach that issue, we must consider the Commonwealth's claim that it was not properly preserved for appellate review.
The Commonwealth contends that appellant's boiler plate motions failed to specifically raise the evidentiary issue, thus violating Rule 1123(a) of the Pennsylvania Rules of Criminal Procedure, and that, therefore, the issue has been waived. Commonwealth v. Blair, 460 Pa. 33, n. 1, 331 A.2d 213, n. 1 (1975). Although appellant's motions lacked the necessary specificity, it is clear from the opinion of the court below that, as in Blair, the issue was presented at oral argument. In Blair, it was noted:
"The practice in some judicial districts of ignoring the requirements of Rule 1123(a) is condemned. Henceforth,
issues not presented in compliance with the rule will not be considered by our trial and appellate courts." 331 A.2d at 214, n. 1.
However, because the longstanding practice of some courts of accepting and ruling on oral motions tended to mislead counsel into relying upon that practice, we did consider the matters presented by Blair in his oral motions. Similarly, where, as here, all of the relevant events occurred before the Court's opinion in Blair served notice that compliance with Rule 1123(a)'s requirement of written motions would be mandatory,*fn3 it would be unfair to impose forfeiture of claims of error solely on the basis of failure to present written motions based on those claims.*fn4 This is especially so where the trial court condoned the noncompliance with Rule 1123(a) by passing upon the merits of the issue tendered orally. Consequently, we conclude that appellant's evidentiary issue is properly before us.
The facts relevant to the substantive issue are as follows. A commonwealth witness, Phillip Brockington, age 15, Fortune's co-defendant who had plead guilty and been sentenced, testified that he and Fortune approached Stanley Simpson, age 16, at approximately 10:00 p. m. on June 30, 1973. Brockington demanded money. When Simpson replied that he did not have any, appellant pushed Simpson, ...