No. 2225 October Term, 1976, Appeal from the Judgment of Sentence Imposed by the Court of Common Pleas, Criminal, of Lancaster County at Nos. 2693 to 2702 of 1975.
John F. Pyfer, Jr., Lancaster, for appellant.
D. Richard Eckman, District Attorney, Lancaster, for the Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Price, J., files a dissenting opinion. Van der Voort, J., files a Dissenting Opinion in which Jacobs, President Judge, joins.
[ 255 Pa. Super. Page 483]
Appellant challenges the constitutionality of the presumption created by § 1212 of the Motor Vehicle Code.*fn1 This presumption is unconstitutional. Commonwealth v. Slaybaugh, 468 Pa. 618, 364 A.2d 687 (1976). Alternatively, we believe that the Commonwealth did not produce sufficient evidence to convict appellant of violating the Motor Vehicle Code. Commonwealth v. Slaybaugh, supra. Accordingly, we order appellant discharged.
On June 22, 1975, Pennsylvania State police officers observed drag races on a public highway in Lancaster County. The police officers recorded the license number of a participating vehicle and determined that appellant owned the car. The police officers subsequently filed criminal complaints charging appellant with three counts of drag racing and several other traffic offenses. On November 7, 1975, appellant filed an Application to Quash Indictments based on the
[ 255 Pa. Super. Page 484]
alleged unconstitutionality of § 1212 of the Motor Vehicle Code. In particular, appellant asserted that the presumption created by § 1212 unconstitutionally shifted the burden of proof to appellant, infringed his right not to incriminate himself, and violated due process. The lower court dismissed this application. On November 21, 1975, appellant waived his right to trial by jury and trial commenced. At appellant's trial, the parties stipulated that: ". . . [T]he Commonwealth has in fact made out a prima facie case of Racing on the Highway, and the further stipulation is that the identity of the Defendant is being proved only by the presumption in the Vehicle Code, Section 1212 of the Vehicle Code, prima facie evidence of his registration." The court accepted this stipulation and then listened to appellant's counsel argue that § 1212 violated the United States Constitution for the reasons specified in the Application to Quash Indictments. At the conclusion of this argument, the lower court found appellant guilty of all charges. Appellant's counsel and the lower court then engaged in the following interchange:
"[Appellant's counsel]: The defense at this time would enter a motion.
"THE COURT: I mean that the Court finds the Defendant guilty on the three misdemeanor charges as enumerated by the District Attorney and on the seven summary offenses as also enumerated by the District Attorney, and refers to the terms and numbers of those cases as heretofore more fully set forth, and finds the Defendant guilty.
"[Appellant's counsel]: Off the record.
"(Discussion off the record.)
"THE COURT: The Court bases this decision on the presumption of the Act of Assembly here and above quoted that indicates that there is a presumption that the owner of the car was driving it at the time of the alleged violation, and that it's his burden to overcome that presumption under
[ 255 Pa. Super. Page 485]
the present law until changed by an appellate court if so done.
"[Appellant's counsel]: The defense, at this time, would enter a motion for a new trial and arrest of judgment.
"THE COURT: I direct you not only to file the motions in writing within seven days but get that stipulation signed before you forget about it, the waiver of jury trial."
In the official docket, the lower court made an entry confirming that appellant had made an oral post-verdict motion for a new trial and in arrest of judgment. At no time did the court give the required Rule 1123(c) warnings as to the necessity of filing specific post-verdict motions in order to preserve contentions for appellate review.*fn2 Subsequently, appellant filed boiler-plate written post-verdict motions challenging the sufficiency of the evidence. On June 17, 1975, the lower court denied appellant's post-verdict motions; the court filed an opinion thoroughly discussing and rejecting appellant's challenge to the constitutionality of § 1212. On July 9, 1976, the lower court imposed a one year term of probation upon appellant. This appeal followed.
In his brief, before us, appellant specifically asserts the unconstitutionality of the § 1212 presumption. The Commonwealth's reply brief consists of one sentence acknowledging that the Pennsylvania Supreme Court has declared the § 1212 presumption unconstitutional, Commonwealth v. Slaybaugh, supra, and agreeing that appellant should therefore be discharged. The Dissenting Opinion however, would hold that appellant did not properly preserve his challenge to the unconstitutionality of the § 1212 presumption, and would remand for a hearing on whether appellant intelligently waived this claim.
[ 255 Pa. Super. Page 486]
We believe that appellant properly preserved his constitutional challenge for appellate review. Our Court has recently held that a defendant may preserve contentions for our consideration by making specific oral post-verdict motions on the record at the conclusion of trial pursuant to Rule 1123(b). Commonwealth v. Erhart, 248 Pa. Super. 481, 375 A.2d 342 (Filed June 29, 1977); Commonwealth v. Kinsey, 249 Pa. Super. 371, 375 A.2d 727 (Filed June 29, 1977); Commonwealth v. Babb, 246 Pa. Super. 471, 371 A.2d 933 (Filed March 31, 1977). In the instant case, all pre-trial, trial,*fn3 and post-trial proceedings focussed exclusively on one issue; the constitutionality of the § 1212 presumption. Indeed, the Commonwealth and appellant stipulated that this was the only issue involved in the case. After a thorough discussion of the constitutionality of the presumption at trial, the lower court explicitly predicated its guilty verdict upon the operation of the presumption. Appellant's counsel immediately filed a motion for a new trial and arrest of judgment; the record makes patently clear that this motion could only refer to appellant's challenge to the constitutionality of the § 1212 presumption.*fn4 The lower court accepted the filing of this motion and responded with a thorough opinion on the issue raised by appellant. Under these circumstances, we hold that appellant specifically and properly preserved his constitutional challenge by filing oral post-verdict motions on the record at the conclusion of trial pursuant
[ 255 Pa. Super. Page 487]
to Rule 1123(b).*fn5 Accordingly, we reach the merits of appellant's argument.
In Commonwealth v. Slaybaugh, supra, 468 Pa. at 624, 364 A.2d at 690, our Supreme Court declared that the § 1212 presumption violated the following ...