No. 936 October Term, 1976, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 1574 and 1575 August Session, 1975.
Gary F. DiVito, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion, in which Cercone, J., joins.
[ 251 Pa. Super. Page 288]
Appellant was sentenced after his conviction of burglary and conspiracy. Boiler plate post-verdict motions were filed by appellant and denied by the court below.
The first issue raised by the appellant is whether the lower court erroneously allowed into evidence a hearsay statement made by appellant's co-conspirator. This issue was not raised, however, in post-verdict motions and is, therefore, not properly preserved for our consideration. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Appellant also argues that the lower court unfairly considered arrests that did not lead to convictions in sentencing appellant. Our review of the record, however, discloses that this issue was likewise not preserved for appellate review since no timely objection was made in the sentencing court. We will not, therefore, consider this claim. Commonwealth v. Shoemaker, 462 Pa. 342, 341 A.2d 111 (1975).
Having found that all the appellant's claims were waived, the judgment of sentence is accordingly affirmed.
SPAETH, Judge, dissenting:
The first issue is whether the lower court erred in admitting hearsay. I agree with the majority that this issue has been waived because it was not raised in the post-trial motions. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). The second issue is whether at the sentencing hearing the lower court improperly considered appellant's arrest
[ 251 Pa. Super. Page 289]
record. The majority decides that appellant's argument*fn1 on this issue has also been waived. In my view this decision is unsupported by the record.
Appellant's brief states the facts as follows:
Prior to the imposition of sentence, the Court reviewed both a presentence report and the appellant's criminal extract. Counsel for appellant addressed the court concerning not only the information contained in the presentence report, but also reviewed the various convictions and arrests reflected on the criminal extract. In his statement to the Court, counsel referred specifically to four arrests which did not result in convictions:
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