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COMMONWEALTH PENNSYLVANIA v. MICHAEL FORTUNER (01/29/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: January 29, 1982.

COMMONWEALTH OF PENNSYLVANIA,
v.
MICHAEL FORTUNER, APPELLANT

No. 1971 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Lackawanna County, Criminal Division, at No. 80-CR-892.

COUNSEL

William J. Purcell, Scranton, for appellant.

Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.

Cercone, President Judge, and Wickersham and Brosky, JJ.

Author: Brosky

[ 295 Pa. Super. Page 60]

Appellant was found guilty by a justice of the peace of operating a junkyard without a permit, in violation of a city ordinance. The court below affirmed his conviction. This appeal followed.

We are unable to reach the merits of this appeal. A review of the record reveals that appellant did not file post-verdict motions in accordance with Pa.R.Crim.P. 1123. In Commonwealth v. Koch, 288 Pa. Super. 290, 431 A.2d 1052 (1981), we held that Rule 1123 is applicable to summary cases, such as the case at bar. However, due to the confusion surrounding the applicability of Rule 1123 to summary cases, to which Koch, supra, is addressed, we find it appropriate to engage in a sua sponte review of the record here,

[ 295 Pa. Super. Page 61]

    to determine whether the court below advised appellant of the need to file post-verdict motions. Commonwealth v. Williams, 290 Pa. Super. 158, 434 A.2d 179 (1981). As we stated in Williams :

The record in this case does not indicate that the lower court informed appellant of his right to file post-verdict motions, of the time within which he must file such motions, of the consequences of his failure to do so, and of his right to counsel in the filing of those motions and on appeal as required by Rule 1123(c).

Id., 290 Pa. Super. at 161-62, 434 A.2d at 180.

Similarly, in the instant case, the lower court failed to so advise appellant. Under these circumstances, we hold, as we did in Williams, that appellant did not knowingly and intelligently waive his right to file post-verdict motions, and that accordingly, we must remand to the court below for the filing of post-verdict motions nunc pro tunc. Commonwealth v. Williams, supra, Commonwealth v. Koch, supra.

Order vacated and the cause remanded for proceedings consistent with this opinion.

19820129

© 1998 VersusLaw Inc.



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