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filed: October 16, 1981.


No. 1748 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Delaware County, Criminal Trial Division, S.A. 113, 1979.


David Weinstein, Philadelphia, for appellant.

August T. Groover, Media, for Commonwealth, appellee.

Price, Wickersham and Lipez, JJ. Price, J., did not participate in the consideration or decision of this case.

Author: Lipez

[ 291 Pa. Super. Page 422]

In a hearing before a district justice, appellant was convicted of driving a vehicle exceeding gross maximum weight. 75 Pa.C.S. § 4941(a). The district justice fined appellant $29,500 under the statutory formula. 75 Pa.C.S. § 4945(a). On de novo appeal to common pleas court, the trial judge stated at the conclusion of trial that he found appellant guilty and would dismiss the appeal. An order was entered stating: "Demur [sic] overruled. Appeal dismissed.

[ 291 Pa. Super. Page 423]

Mr. Weinstein [defense counsel] to hand up Order for supersedeas. Mr. Groover [prosecutor] copying exhibits and will return originals." This appeal from that order must be quashed, because there has been no entry of an appealable order.*fn1

In Commonwealth v. Myers, 457 Pa. 317, 319, 322 A.2d 131, 132 (1974), our Supreme Court, reiterated the long standing rule, stating: "It is unquestionably the law that a defendant may appeal only from a final judgment of sentence and an appeal from any prior order will be quashed as interlocutory."*fn2 The Court has since created certain exceptions, both by case law and rule,*fn3 but no exception is applicable here.

It is apparent from the opinion of the trial judge that he believed the effect of his "dismissal" of the appeal was to "affirm" the sentence imposed by the district justice, leaving

[ 291 Pa. Super. Page 424]

    it intact. However, although statutes refer to the hearing which took place in the common pleas court below as an "appeal," 42 Pa.C.S. § 932, it is not like an ordinary appeal to an appellate court.*fn4 When a new matter previously determined by a district justice or magistrate*fn5 is heard in common pleas court under statutes such as 42 Pa.C.S. § 932 and its predecessors, the criminal charge or civil cause of action remains the same, but all proceedings on the charge or cause of action are de novo. E. g., Commonwealth v. Congdon, 74 Pa. Super. 286, 288-89 (1920); cf. Reitze v. Meadville & Linesville Railway Co., 126 Pa. 437, 440, 17 A. 663 (1889); see generally 2 W. Sadler, Criminal Procedure in Pennsylvania, § 856 (2d [G. Henry] ed. 1937). The "appeal" to common pleas court is actually a retrial of the case as if the prior summary proceeding had not occurred. Commonwealth v. Koch, 288 Pa. Super. 290, 293 & n. 3, 431 A.2d 1052, 1054 & n. 3 (1981).

As this court stated in Commonwealth v. Brann, 78 Pa. Super. 345, 348 (1922): "It was not the function of the court to affirm or reverse the magistrate. It was the duty of the court to try the case de novo, to hear the evidence and the arguments of counsel, and thereupon to enter such judgment as would be warranted under the law and the evidence." The case before us is not quite the same as Brann and

[ 291 Pa. Super. Page 425]

    similar cases,*fn6 in which this court reversed and remanded for a de novo hearing in common pleas court, because that court had simply entered an order sustaining or dismissing the appeal from the magistrate. Here the court below did conduct a de novo hearing and make a new determination of guilt, but failed only to take two remaining steps. First, the court should have informed appellant that he had the right to file post-verdict motions within ten days, and that any issues not raised in those motions would be waived on appeal. Pa.R.Crim.P. 1123(c).*fn7 Second, if the motions were denied, or if motions were neither filed nor made orally under Rule 1123(b), the court should then have proceeded to make its own determination of the appropriate sentence, and entered that judgment of sentence on its docket.

[ 291 Pa. Super. Page 426]

Only the second step, entry of the judgment of sentence,*fn8 is essential to appealability. As we stated in Commonwealth Page 426} v. Tilman, 273 Pa. Super. 416, 418 n.4, 417 A.2d 717, 718 n.4 (1980): "Appellant should not have been sentenced until after post-verdict motions. Comments, Pa.R.Crim.P. 1123, 1405; Commonwealth v. Webster, 466 Pa. 314, 317-18, 353 A.2d 372, 373 (1975). While procedurally incorrect, however, this sentence was a final order reduced to judgment, and therefore appealable. Pa.R.A.P. 301(a)."*fn9 While the lack of post-verdict motions is not fatal to the appeal before us, the lack of an appealable order is.*fn10 The appeal must therefore

[ 291 Pa. Super. Page 427]

    be quashed.*fn11

Appeal quashed.

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