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COMMONWEALTH PENNSYLVANIA v. BRADFORD GAMBLE (07/06/79)

SUPREME COURT OF PENNSYLVANIA


decided: July 6, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
BRADFORD GAMBLE, A/K/A TYRONE JACKSON, APPELLANT

Nos. 224 and 235 January Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Imposed on Information Nos. 974-975, February Session, 1976

COUNSEL

Joshua M. Briskin, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Nancy D. Wasser, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Eagen, C. J., filed a concurring opinion. Manderino, J., filed a concurring opinion.

Author: Larsen

[ 485 Pa. Page 419]

OPINION OF THE COURT

On July 22, 1976, appellant was convicted of murder of the first degree and possession of instruments of crime. On July 26, 1976, appellant filed post-trial motions and reserved the right to file additional and supplemental motions. No additional or supplemental motions were filed and appellant's post-trial motions were denied. Appellant was sentenced to a term of life imprisonment for his murder conviction and a consecutive term of one and one-half to three years for the weapon convictions. Appellant now directly appeals from his murder conviction*fn1 and raises as his sole issue for review the admissibility of a dying declaration introduced at trial.*fn2

This issue has been waived. Although appellant orally argued this issue before the lower court during his post-trial motions hearing, appellant never specifically included the claim in his written posttrial motions which were of the boiler plate variety.*fn3 Pa.R.Crim.P. 1123(a), 19 P.S. Appendix

[ 485 Pa. Page 420]

    requires written post-trial motions. In Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), this Court directed trial and appellate courts to consider only those issues specifically set forth in written post-trial motions. In Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978), this Court held that an issue presented orally before the lower court, but not specifically raised in written post-trial motions is waived even though that issue was considered by the lower court.

Judgments of sentence affirmed.

EAGEN, Chief Justice, concurring.

I join in Mr. Justice LARSEN's opinion. No brief was presented or filed in the post-verdict motion court. Compare Commonwealth v. Gravely, Pa. , 404 A.2d 1296 (1979).

MANDERINO, Justice, concurring.

Because no brief was filed or presented in the post-verdict motions court and because the Blair decision was published in the official Pennsylvania Reporter before post-verdict motions were filed, the issues raised by appellant are waived. Pa.R.Crim.P. 1123(a).


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