No. 429 January Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Indictment No. 402 August Term, 1975
Alexander Hemphill, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Charles Cunningham, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.
Appellant Larry Kozek was convicted after a jury trial of murder in the first degree.*fn1 This direct appeal*fn2 followed the denial of post-trial motions and the imposition of judgment of sentence.
Appellant contends that the trial court erred in permitting evidence to be introduced regarding murder in the second degree*fn3 and in permitting the jury to consider that offense when no felony was set forth in the indictment.*fn4 The trial court held that this argument was waived for want of compliance with Pa.R.Crim.P. 1123(a)*fn5 and our decision in Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975),*fn6 and appellant argues that this too was error. We will not disturb the trial court's ruling.
The circumstances relevant to this question are as follows. The verdict in this case was returned on October 29, 1975; post-trial motions, which contained standard reasons for arrest of judgment and for a new trial and which reserved leave to file supplemental reasons, were filed on November 3, 1975; and argument was had on the motions on February 27, 1976. These events occurred long after our decision in Blair, supra, which was filed on January 27, 1975. The transcript of oral argument on the motions discloses that appellant's counsel submitted his brief on motions just prior to argument and that the court, noting that appellant's contention concerning the indictment was not included in his post-trial motions, reminded counsel of the Blair requirement. Counsel replied that "if we are going to follow some new rule I'll ask for a continuance and file the reasons and we'll go from there." No continuance was requested, however,
and counsel proceeded with his argument. No supplemental motions were ever filed.
We have no doubt that Rule 1123(a) and our decision in Blair are controlling in this situation. The profession in general was made aware on June 8, 1973 by the adoption of Pa.R.Crim.P. 1123(a) and on January 27, 1975 when our Blair decision was announced, that reasons for a new trial were to be included in the text of post-trial motions and would not be considered otherwise. In addition, defense counsel in the case at bar was expressly reminded of that requirement by the trial court. As stated above, no supplemental motions were filed despite this admonition. The trial court acted correctly in ...