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COMMONWEALTH PENNSYLVANIA v. DONALD KOCH (07/02/81)

filed: July 2, 1981.

COMMONWEALTH OF PENNSYLVANIA
v.
DONALD KOCH, APPELLANT



No. 1214 October Term, 1978, Appeal from the Order and Judgment of Sentence of the Court of Common Pleas of Northampton County, Criminal Division, No. 2161-1977.

COUNSEL

Dwight L. Danser, Easton, for appellant.

Michael Vedomsky, Assistant District Attorney, Easton, for Commonwealth, appellee.

Cercone, President Judge, and Price, Spaeth, Hester, Cavanaugh, Montgomery and Hoffman, JJ. Price, J., files a concurring opinion in which Cavanaugh, J. joins.

Author: Cercone

[ 288 Pa. Super. Page 293]

This is an appeal from a summary conviction for disorderly conduct.*fn1 Appellant Koch was found guilty by a local district justice who fined him twenty-five dollars plus costs. Mr. Koch appealed this decision to the Court of Common Pleas of Northampton County for a de novo hearing.*fn2 Following this hearing, the Court of Common Pleas also found Mr. Koch guilty of disorderly conduct and fined him one hundred dollars plus court costs. From this order, the appellant took an appeal to this Court. In a panel decision, we dismissed Mr. Koch's appeal without reaching the merits of the case, finding he had waived all issues on appeal due to his failure to file post-verdict motions in accordance with Pa.R.Crim.P. 1123. After granting Mr. Koch's petition for reargument, this Court, sitting en banc, heard oral argument by counsel for appellant solely on the issue of waiver. With respect to this issue, it is Appellant's contention that Rule 1123 is inapplicable to summary convictions. We do not agree.

Appellant argues that Rule 1123 pertains only to traditional prosecutions for misdemeanors and felonies, and that appeal from a summary conviction is governed exclusively by Pa.R.Crim.P. 67. While it is true that criminal rules 63 through 67 specifically deal with summary convictions, the applicability of these rules is limited to those proceedings which take place before the district magistrate. Rule 67 which establishes the procedure for perfecting an "appeal" to the Court of Common Pleas for a trial de novo is, in reality, a retrial of the case as if the prior summary proceeding had not occurred.*fn3 At this point, the district justice

[ 288 Pa. Super. Page 294]

    level, the very policy underlying the necessity for post-verdict motions is not applicable.*fn4

Summary violations are by definition, minor offenses, punishable most often, only by fine. They justifiably should be summarily handled and the purpose and goal of the rules governing such proceedings is prompt adjudication before the issuing authority. Commonwealth v. Wadzinski, 239 Pa. Super. 76, 361 A.2d 790 (1976). However, once an appeal is taken to the Court of Common Pleas, this goal is clearly abrogated, and thereafter, all general provisions of the criminal rules become applicable to the trial de novo unless specifically made inapplicable.*fn5 The provisions governing construction and definitions of the rules, set out in Pa.R.Crim.P. Chapter 1, state the following:

Rule 1(a) These rules shall govern criminal proceedings in all courts including courts not of record.

Rule 3(g) Criminal proceedings include all actions for the enforcement of the Penal Laws.

Rule 3(k) Penal laws include all statutes and embodiments of the common law which establish, create or define crimes or offenses including any ordinances which may provide for imprisonment upon conviction or upon failure to pay a fine or penalty.

[ 288 Pa. Super. Page 295]

The Crimes Code defines a crime as "[a]n offense . . . for which a sentence of death or of imprisonment is authorized." Crimes Code, 18 Pa.C.S.A. § 106. Since the maximum sentence on a summary offense is ninety days imprisonment under 18 Pa.C.S.A. § 1105, a summary offense is a "crime" under the terms of the Crimes Code, and therefore upon a finding of guilt in a de novo summary proceeding, Rule 1123 is applicable. See generally In the Interest of Golden, 243 Pa. Super. 267, 365 A.2d 157 (1976), and Commonwealth v. Oakes, 481 Pa. 343, 392 A.2d 1324 (1978).

Rule 1123 states that "within ten (10) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment". The purpose of such motions is twofold: (1) to afford the trial court in the first instance, the opportunity to correct asserted trial errors; and (2) to clearly and narrowly frame issues for appellate review. Commonwealth v. Kinsey, 249 Pa. Super. 1, 375 A.2d 727 (1977). With respect to this policy, there is no basis ...


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