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COMMONWEALTH PENNSYLVANIA v. EZEKIEL KINSEY (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
EZEKIEL KINSEY, APPELLANT



Appeal from the Judgment of Sentence of September 4, 1975, of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Nos. 928 and 929 March Term, 1975.

COUNSEL

Robert J. F. Brobyn, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring opinion in which Cercone and Spaeth, JJ., join.

Author: Price

[ 249 Pa. Super. Page 4]

Appellant was found guilty by a judge sitting without a jury of criminal conspiracy*fn1 and receiving stolen property.*fn2 Three claims are presented in this appeal: (1) the evidence was insufficient to support a conviction of criminal conspiracy; (2) the evidence was insufficient to support a conviction of receiving stolen property; and (3) the trial court erred in denying appellant's motion to suppress physical evidence.

First, we hold that because the contentions raised in this appeal were also made in oral motions, on the record, at the conclusion of trial, they were properly preserved for our review under Pa.R.Crim.P. 1123(b). Reaching the merits of appellant's claims, we find that the Commonwealth did not produce sufficient evidence to support convictions of criminal conspiracy and receiving stolen property. We must therefore vacate the judgments of sentence imposed on appellant and order him discharged.

On February 18, 1975, at approximately 11:45 p. m., police officers responded to a call that a burglary was in progress. The eyewitness who placed the call stated that two men were breaking into a garage next to the house at 304 West Hotter Street in Philadelphia. The officers arrived on the scene and apprehended two suspects.

At approximately 5:40 a. m. the following morning, February 19, 1975, one of the officers who had responded to the burglary call observed appellant pulling a handcart with three cartons on it north on Germantown Avenue. The location was two blocks from the scene of the earlier burglary. Although appellant was doing nothing illegal, the officer decided to stop him for a brief investigation. The officer testified that he was not in any way concerned for his safety.

Upon effecting the stop, the officer noticed two one-gallon containers of Sears anti-freeze in one of the cartons. The officer testified that he had seen six such containers at the

[ 249 Pa. Super. Page 5]

    scene of the earlier burglary and his suspicions were thus aroused. He conducted a further search of the cartons and discovered ten cans of M & R brand anti-freeze as well as various tools. Appellant did not answer, to the officer's satisfaction, questions concerning appellant's destination and the source of the various items. Appellant was arrested and transported to the scene of the Hotter Street burglary. The victim of that crime could not make a positive identification of any of the items, but stated that the handcart, cartons, and anti-freeze were the same kind as those owned by him.

Appellant filed a motion to suppress the evidence obtained during the stop and search of February 19, 1975. This motion was argued and denied on August 14, 1975, and appellant was tried the same day by the judge who heard the suppression motion. Although trial was completed in one day, judgment was reserved until September 4, 1975. At that time, appellant was found guilty on both charges and was sentenced to two concurrent terms of six to twenty-three months imprisonment. The lower court also made parole conditional on appellant's in-patient participation in a drug rehabilitation program. Appellant's counsel then made oral post-trial motions challenging the sufficiency of the evidence to support either conviction and also the court's refusal to suppress physical evidence resulting from an allegedly illegal stop and search.

We direct our initial inquiry to the effect and significance of the oral post-trial motions made by appellant's counsel. At the conclusion of trial, Rule 1123(c) assumes a position of primary importance. This section states:

"(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."

[ 249 Pa. Super. Page 6]

Responsibility rests upon the trial judge to impart the above-recounted information to the defendant. This is a vital function in several different respects. First, it insures that the defendant is apprised of his post-verdict rights and their correlative significance in terms of the appellate process. The defendant's appellate rights are thus protected and unintelligent waiver of these rights is precluded. Second, adherence to the dictates of Rule 1123(c) makes possible the fair and logical application of the theory of waiver in regard to inadequately preserved claims for appellate review.

The concept of waiver of appellate claims, as promulgated by the Pennsylvania Supreme Court in Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), has been treated and applied in a myriad of subsequent cases, both in that court and our own. The many considerations supporting the waiver rule were re-examined by the Supreme Court in Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975). Judicial economy is promoted by allowing the trial court a first opportunity to review and perhaps correct asserted trial errors. Effective appellate review is enhanced by the presentation of only those issues clearly framed in post-trial motions below. The appellate court receives the benefit of the trial court's reasoning on these matters and proper presentation of potential appellate claims at trial engenders a complete record. Finally, careful preparation and effective trial advocacy are promoted, as an ill-prepared or careless attorney can no longer expect an appellate court to alleviate the consequences of his inadvertence.*fn3 Post-trial procedure, the appellate process and the enforcing agency of waiver are thus closely interwoven in the judicial system of this Commonwealth. Rule 1123 serves a dual function within this universe, promoting the cause of efficient and effective legal process, but simultaneously protecting the rights of convicted defendants by assuring that post-trial claims are not unknowingly or unintelligently waived.

[ 249 Pa. Super. Page 7]

The section of Rule 1123 which is especially relevant to the instant case provides:

"(b) If the defendant agrees on the record, the post-verdict motions may be made orally at the conclusion of the trial. The defendant may also within the seven (7)-day period on the record voluntarily and understandingly waive the filing of post-verdict motions. Prior to the acceptance of such waiver the trial judge shall, pursuant to paragraph (c) of this Rule, advise the defendant on the record that his waiving of post-verdict motions shall preclude his raising on appeal any issues which might have been raised in such motions."

In a situation where the defendant indicates his intention or desire to enter oral post-verdict motions, one possible interpretation of the above-quoted language would make it the responsibility of the trial judge to establish on the record the defendant's consent to this procedure. We do not believe that the rule contemplates the placing of this additional burden upon the trial court. If the trial judge has properly informed the defendant, upon the record in open court, of his post-verdict rights under 1123(c), and the defendant, by counsel, thereafter proceeds to make oral motions, these motions would be proper and effective under 1123(b). In the aforestated circumstances, the post-trial claims raised orally would be properly preserved for appellate review, and assuming no further written motions were timely filed, arguments not included in the oral motions would be waived for appellate purposes.

In cases dealing with waiver or withdrawal of post-trial motions, our Supreme Court has held that the record must demonstrate the course of action chosen by the defendant to have been "knowing and intelligent." Commonwealth v. Schroth, 458 Pa. 233, 236, 328 A.2d 168, 169 (1974). This court has clearly indicated that the information required by Rule 1123(c), appearing on the record, could support a finding of waiver. Commonwealth v. Fryberger, ...


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