Appeal from the Judgment of Sentence of the Court of Common Pleas of Carbon County, Criminal Division, at No. 48 January Term, 1975.
Richard W. Webb, Assistant Public Defender, Jim Thorpe, for appellant.
Murray Mackson, Palmerton, 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. Price, J., files a concurring opinion in which Jacobs, J., joins. Spaeth, J., files a concurring opinion.
[ 248 Pa. Super. Page 482]
The appellant, William C. Erhart, was charged with forgery and receiving stolen goods. Prior to trial, he moved for a dismissal of all charges, alleging a violation of Rule 1100 of the Pennsylvania Rules of Criminal Procedure. He claimed he had not been brought to trial within the required 180 day period mandated by the Rule. The Commonwealth answered the motion, claiming that appellant could not be located after the complaint was filed and thus to be deemed "unavailable" within the meaning of Rule 1100.
The lower court denied the appellant's dismissal motion. At trial on April 14, 1975, Erhart was convicted of both forgery and receiving stolen goods charges. Following conviction, the appellant's attorney made an oral motion for a new trial and a motion in arrest of judgment. He was asked
[ 248 Pa. Super. Page 483]
by the trial judge if he was going to file a motion for a new trial. To this inquiry counsel replied, "I think it will be more in the nature of a motion for arrest of judgment. I don't believe the defendant should come to trial in the first place, much less have a second trial". The oral motion in arrest of judgment was argued then and there (counsel again arguing the Rule 1100 issue) and was denied by the court. No written post-trial motions for either a new trial or in arrest of judgment were ever filed.
The trial and post-trial motions in this case followed the decision of the Pennsylvania Supreme Court in Commonwealth v. Blair, 460 Pa. 31, N. 1, 331 A.2d 213, N. 1 (filed January 27, 1975), and we cannot therefore consider claims not raised in written post-trial motions. See Pennsylvania Rule of Criminal Procedure 1123(a); Commonwealth v. Bailey, 463 Pa. 354, 344 A.2d 869 (1975). In view of the non-compliance by appellant with the requirements of Rule 1123 and the recent holdings of our Supreme Court, we cannot consider the Rule 1100 issue to have been adequately preserved for appellate review.
HOFFMAN, Judge, concurring:
The Majority concludes that appellant waived his claim under Rule 1100, Pa.R.Crim.P., 19 P.S. Appendix, because he failed to file written post-verdict motions pursuant to Rule 1123(a), Pa.R.Crim.P. 19 P.S. Appendix. I conclude that appellant's counsel properly preserved the Rule 1100 contention by complying with Rule 1123(b). Accordingly, I find it
[ 248 Pa. Super. Page 484]
necessary to reach the merits of appellant's substantive claim. Because Rule 1100 was not violated in this case, I concur in the result reached by the Majority.
Before addressing the specific facts of this case, I will explain my conception of the way Rule 1123 operates. Because this task requires an appreciation of the interrelationships between the rule's various sections, I reproduce below sections (a), (b), and (c) in their entirety:
"(a) Within seven (7) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment. Only those grounds may be considered which were raised in pre-trial proceedings or at trial, unless the trial judge, upon cause shown, allows otherwise. Argument shall be scheduled and heard promptly after such motions are filed, and only those issues raised and the grounds relied upon in the motions may be argued. If the grounds asserted do not require a transcript, neither the filing nor argument of post-verdict motions shall be delayed for lack of a transcript of the notes of testimony.
"(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.
"(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."
[ 248 Pa. Super. Page 485]
Surprisingly, a proper interpretation of Rule 1123 requires that sections (a), (b), and (c) be considered in reverse order.
After a finding of guilt is returned, Rule 1123(c) mandates that the trial judge advise the defendant of his right to file post-verdict motions and to have the assistance of counsel. Most importantly, the judge must inform the defendant of the consequences of failing to file post-verdict motions. Rule 1123(c)(3).
Rule 1123(b) now comes into play. The trial judge should ask the defendant and his counsel whether they wish to make oral post-verdict motions. If counsel makes oral motions and does not reserve the right to file further written motions pursuant to Rule 1123(a), the trial judge should secure the defendant's agreement to this procedure. This safeguard is necessary to ensure that the defendant does not unwittingly waive his right to file written post-verdict motions. Prior to obtaining defendant's agreement to the making of oral motions, the trial judge should advise defendant that his consent will constitute a waiver of his right to file written post-verdict motions on other issues and, consequently, to appeal on those issues.*fn1 If oral post-verdict motions are not made, the trial judge should ask the defendant and counsel whether they plan to file written post-verdict motions within seven days pursuant to Rule 1123(a). If either defendant or his counsel desires to do so, he should reserve the right to file motions under Rule 1123(a). If, however, defendant does not desire to file either ...