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decided: March 29, 1976.


Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1974, No. 0869, in case of Commonwealth of Pennsylvania v. Samuel Joseph Polof.


S. David Fineman, for appellant.

Peter Noel Duhamel and Ben W. Joseph, Assistant Attorneys General, and Walter M. Phillips, Jr., Deputy Attorney General, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this dissenting opinion.

Author: Jacobs

[ 238 Pa. Super. Page 567]

Appellant Samuel Joseph Polof was convicted of one count of perjury on January 30, 1975, following a jury trial. Motions for a New Trial and In Arrest of Judgment were thereafter filed and denied and appeal to this Court followed. Because appellant has failed to properly preserve the issues he now presents by raising them below in his post-trial motions we may not consider them on this appeal and we therefore affirm.

Samuel Polof appeared as a witness before the Special Investigating Grand Jury of Philadelphia County on August 28th and September 6th, 1974. Mr. Polof's testimony was taken pursuant to the Grand Jury's investigation of alleged payments of money to police officers and public officials in order to protect illegal gambling activities. In the course of appellant's testimony he made certain statements which led to his indictment for perjury in September, 1974. On October 8, 1974, counsel for appellant filed a Motion to Quash Indictments on the four counts of perjury charged. As of the same date appellant also filed a Motion for Discovery, which was allowed in part and denied in part by Judge Kubacki on November 20, 1974, after answer by the Commonwealth and argument. Appellant's Motion to Quash Indictments was denied on the same day, also after answer and argument. Two of the indictments were thereafter amended (consisting of deletion of certain of the allegedly false statements), with leave of court, and an additional Motion to Quash Indictments was filed on January 13, 1975. Judge Kubacki noted of record on the same date that the Motion to Quash Indictments had been denied on the record. (Counsel for appellant apparently chose to treat the amendment as a basis for filing a new motion to quash; Judge Kubacki seemingly disagreed and endorsed the record accordingly). Appellant thereafter entered a plea of not guilty to all four counts, was tried before a jury, Judge Kubacki presiding, and was convicted on one count of perjury, on January 30, 1975.

[ 238 Pa. Super. Page 568]

Appellant filed post-trial motions on February 6, 1975. These included the usual "boiler plate" motions together with two general grounds for relief.*fn1 Although appellant's brief here recites that supplemental motions were filed after the Notes of Testimony were transcribed, no additional grounds appear of record. Post-Trial Motions were denied on April 21, 1975 and appellant was sentenced to three to twenty-three months in Philadelphia County Prison. In an opinion dated June 23, 1975 Judge Kubacki states that no brief on the post-trial motions was submitted by appellant's counsel, that "[t]he motions were general in nature" (suggesting that supplemental motions were in fact never filed) and that "[n]o meritorious arguments were advanced by counsel for the defendant" (an apparent comment on whatever oral arguments were advanced).

The preceding makes it clear that this Court has no record of the nature of appellant's oral motions and arguments nor any record indication of grounds for post-trial relief other than those advanced in appellant's "Motion For New Trial And/Or Arrest of Judgment", supra n. 1, filed February 6, 1975. Appellant brings this appeal from the judgment of sentence imposed April 21, 1975 (which sentence was stayed pending his appeal on May 21, 1975), advancing numerous grounds upon which he should be granted relief.

Appellant has raised eighteen assignments of error which present various interconnected issues and some

[ 238 Pa. Super. Page 569]

    questions which have heretofore been unconsidered by our courts. Although some of appellant's arguments are novel and may ultimately merit an opinion in a proper case, the procedural posture of this case is such that they are not properly presented to us because they were not raised in post-trial motions and we may not consider them.

Appellant's issues Nos. 4 through 10, 12, 14, 15 and 18, as set forth in the "Questions Presented" section of his brief, were in no way raised in his post-trial motions, supra n. 1, and are therefore clearly waived. Not only does the record fail to disclose that they were considered below on written motion but the opinion of the lower court fails to show that they were raised orally as well. We must, therefore, deem these issues waived, Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975); Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); because they are not a part of the record. We cannot consider what is not in the record, Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974).

We are not so clearly precluded from consideration of appellant's issues Nos. 1 through 3, 11, 13, 16 and 17, as set forth in his "Questions Presented."*fn2 These issues may be said to be theories supporting appellant's general grounds for post-trial relief as set forth in his post-trial motions, reasons 4 and 5, supra n. 1. However, a close analysis of our Supreme Court's recent decisions in Commonwealth v. Bailey, supra, Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975), and Commonwealth v. Blair, supra, leads us to the conclusion

[ 238 Pa. Super. Page 570]

    that these issues have been similarly waived by failure to raise them in post-trial motions.

The decision in Commonwealth v. Bronaugh, 459 Pa. 634, 331 A.2d 171 (1975) and cases cited therein, makes it clear that alleged errors must be specifically raised below if they are to be preserved for consideration on appeal. In Commonwealth v. Blair, supra, it was further noted that the proper procedure for preservation of issues is to have complied with Pa.R.Crim.P. 1123(a) and included the specific issue in the written post-trial motions considered by the lower court. However, because of the now-condemned practice of some judicial districts of ignoring the requirements of Pa.R.Crim.P. 1123(a) the Court in Commonwealth v. Bailey, supra, held that in pre- Blair cases in which the lower court accepted oral motions and ruled on the merits, it would not require the written motions prescribed in Blair.

In the present case the record reveals that none of the above requirements have been met. Appellant's post-trial motions are not specific in their written form, and, unlike the situation in Bailey, we have no record of the specific issues raised orally because here the lower court did not rule on the merits, of record.*fn3 Indeed, the lower court here held that appellant's grounds 4 and 5, supra n. 1, (as well as his "boiler plate" grounds) were "general in nature" and noted that no brief was filed by counsel (thus precluding supplement to their specificity, in writing). The sole indication that other arguments were advanced is the lower court's comment that "[n]o meritorious arguments were advanced by

[ 238 Pa. Super. Page 571]

    counsel for the defendant." No indication as to what these arguments were is present on the record, as noted above.

Moreover, appellant has not argued that he preserved the "grounds" below and here raises "theories" to support them, as he well might have based on the decision in Commonwealth v. Wayman, 454 Pa. 79, 82 n. 1, 309 A.2d 784, 786 n. 1 (1973). Had he done so, we would still remain unconvinced that the arguments now advanced are properly before us. The Wayman reasoning, which would seem to support the conclusion that appellant's "grounds" (to wit, that the lower court erred by refusing to quash the indictment or grant the total range of discovery sought) were preserved here has been specifically rejected by Justice Nix in Commonwealth v. Mitchell, supra (joined by one Justice with three concurring). Although Mitchell does not explicitly indicate that it is to be given retroactive effect, a close reading of the decision reveals that it does not announce a prospective rule but rather a recognition that a temporary departure from a long standing rule was erroneous. The Court did not say "henceforth" we will require that the theory as well as the grounds be raised below, rather, it held in the case then before it that a theory there not raised below was waived. This conclusion is supported by Justice Pomeroy's comment in his Concurring Opinion in Mitchell that he ". . . applaud[s] this development, even though a few horses were stolen before the barn door was locked." Id. at . . ., 346 A.2d at 54. (footnote by the Court omitted). The Court thus returns to the "fundamental principle of appellate review that we will not reverse a judgment or decree on a theory that was not presented to the trial court." Kimmel v. Somerset County Commissioners, 460 Pa. 381, 384, 333 A.2d 777, 779 (1975).

We are thus convinced that the recent trend of our Supreme Court's waiver decisions ...

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