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COMMONWEALTH PENNSYLVANIA v. JAMES WALSH (06/29/77)

SUPERIOR COURT OF PENNSYLVANIA


decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES WALSH, APPELLANT

Appeal from the Judgment of Sentence of the Court of Common Pleas, Crim. Trial Div. of Phila. County, Imposed on Bill of Indictment Nos. 1050-51, June Session, 1974.

COUNSEL

John W. Packel, Assistant Public Defender, 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. Van der Voort, J., dissents.

Author: Per Curiam

[ 248 Pa. Super. Page 480]

Appellant's post-verdict motions, filed on January 16, 1975, were argued on April 9, 1975, more than ten weeks after the Supreme Court announced in Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), that only written motions would be considered by trial and appellate courts. Appellant is therefore foreclosed from arguing on this appeal claims other than those raised in his boiler-plate written motions. Commonwealth v. Cornish, 471 Pa. 256, 260, 370 A.2d 291, 293 (filed Feb. 28, 1977); Commonwealth v. Bailey, 463 Pa. 354, 357, 344 A.2d 869, 871 (1975); Commonwealth v. Branch, 239 Pa. Super. 17, 22 n. 3, 361 A.2d 435, 438 n. 3 (1976). However, appellant was not given the instruction required by Pa.R.Crim.P. 1123(c), and we cannot presume from such a silent record that appellant's failure to file written motions (other than boiler-plate motions) was knowing and voluntary. The case is therefore remanded for compliance with Rule 1123(c) and thereafter to permit appellant to file written post-verdict motions nunc pro tunc. Commonwealth v. Miller, 232 Pa. Super. 171, 335 A.2d 528

[ 248 Pa. Super. Page 481]

(1975); Commonwealth v. Dimitris, 231 Pa. Super. 469, 331 A.2d 701 (1974). Following the lower court's disposition of any further motions filed, either side shall be entitled to file a new appeal.

19770629

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