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COMMONWEALTH PENNSYLVANIA v. GARY ROBERSON (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
GARY ROBERSON, APPELLANT



No. 2006 October Term, 1976, Appeal from the Judgment of Sentence imposed on June 17, 1976, by the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section at Nos. 1029, 1030 and 1032 July Term, 1975.

COUNSEL

John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Steven H. Goldblatt, Assistant District Attorney 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. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.

Author: Price

[ 258 Pa. Super. Page 473]

Appellant was arrested at the age of seventeen and subsequently convicted of various offenses following a jury trial. Following denial of his post-trial motions for a new trial and in arrest of judgment, appellant was sentenced. We affirm that judgment.

Appellant presents one issue which, if it had been properly preserved, would entitle him to a new trial, namely that his confession should have been suppressed because he was not given an opportunity, prior to waiving his Miranda rights, of consulting with an interested adult,*fn1 in accordance with Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975). Appellant argued in his post-verdict motions:

"The court erred in not granting defendant's motion to suppress defendant's alleged confession and admitting same into evidence as the statement was the fruit of an

[ 258 Pa. Super. Page 474]

    illegal arrest and the product of unnecessary delay between arrest and arraignment; furthermore, the defendant did not knowingly and intelligently waive his constitutional rights and the statement was involuntary under the totality of the circumstances." (emphasis added)

The Pennsylvania Supreme Court decided in Commonwealth v. Baylis, 477 Pa. 472, 384 A.2d 1185 (1978), that when a juvenile did not specifically assert in his suppression motion that he had no opportunity to consult with an interested adult, but rather that his Miranda rights were ineffective, the specific issue was not preserved. We find the language in this case equally insufficient to preserve the identical claim in post-trial motions.

Furthermore, we do not accept the rationale of the dissent that appellant preserved the issue by specifically presenting it in an addendum brief to his post-trial motions; the brief was not included in the record which accompanied the appeal to our court. The dissenters would not find waiver because, once a formal request was made by our prothonotary, a copy of the addendum brief was supplied to this court. This we do not accept. See Commonwealth v. Walsh, 252 Pa. Super. 111, 380 A.2d 1307 (1977).

In Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), the supreme court held that to be preserved for appellate review, all issues which a defendant wished to assert had to be initially presented to the lower court in written post-trial motions. Since that decision, a myriad of others has followed, more often confusing than elucidating what appeared to be a very simple dictate at the outset. In Commonwealth v. Grace, 473 Pa. 542, 375 A.2d 721 (1977), the court held that in cases in which a written brief or memorandum was filed with the lower court, but no post-trial motions were filed, the strict waiver concept of Pa.R.Crim.P. 1123 would not be enforced. In Commonwealth v. Jones, 478 Pa. 172, 386 A.2d 495 (1978), the supreme court retreated ...


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