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COMMONWEALTH PENNSYLVANIA v. KEVIN WILLIAMS (08/28/81)

filed: August 28, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
KEVIN WILLIAMS, APPELLANT



No. 1122 October Term, 1979, Appeal from Judgment of Sentence in the Court of Common Pleas of Northampton County, Criminal Division, at No. 381 of 1979.

COUNSEL

Ronold J. Karasek, Bangor, for appellant.

Michael Vedomsky, Assistant District Attorney, Easton, did not file a brief on behalf of Commonwealth, appellee.

Wickersham, Brosky and Roberts, JJ.*fn*

Author: Wickersham

[ 290 Pa. Super. Page 160]

On March 12, 1979, appellant, Kevin Williams, was found guilty by a district magistrate court of failing to stop for a steady red signal in violation of 75 Pa.C.S. § 3112(a)(3)(i). The district magistrate court imposed a fine in the amount of twenty-five dollars ($25.00) plus costs. Appellant appealed the case to the Court of Common Pleas of Northampton County, where, on May 14, 1979, this case was heard de novo.*fn1

The testimony at the trial de novo established that on February 6, 1979, at approximately 8:40 a.m., Richard Lutack was driving his car through an intersection in Easton, Pennsylvania, when it was hit by a car driven by appellant. The intersection had a traffic-control signal, and there was conflicting testimony as to whether Mr. Lutack or appellant had a green light at the time of the accident. At the end of the trial, the lower court found appellant guilty of the summary offense and imposed the mandatory fine of twenty-five dollars ($25.00) plus costs.*fn2 This appeal followed.

Appellant raises several issues on appeal, but we are unable to consider these issues for the following reasons. There is no indication in the record that appellant made any post-verdict motions in accordance with Pa.R.Crim.P. 1123. Commonwealth v. Koch, 288 Pa. Super. 290, 431 A.2d 1052 (1981). Appellant does not allege on appeal that his waiver was unintelligent or involuntary or that the trial court failed to comply with Pa.R.Crim.P. 1123(c) (duty of trial court to advise defendant, after verdict, of right to file post-verdict motions and consequences of failure to so file).

As we stated in Commonwealth v. Koch, supra, there has been a divergence of opinion in this court as to whether we should conduct a sua sponte review of the record for the purpose of determining whether the lower court has complied with Rule 1123(c).

Several cases have held that the absence of a specific allegation by appellant that his waiver was unintelligent

[ 290 Pa. Super. Page 161]

    or involuntary precludes as independent review of the record. Commonwealth v. Tegano, 265 Pa. Super. 453, 402 A.2d 526 (1979); Commonwealth v. Smith, 258 Pa. Super. 148, 392 A.2d 727 (1978); Commonwealth v. Harmon, [267] Pa. Super. [224], 406 A.2d 775 (1979). However, another line of decisions mitigates the harshness of the automatic waiver rule by reasoning that if the record is devoid of an 1123 colloquy by the lower court then appellant cannot be found to have knowingly waived his rights ...


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